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Opening arguments are being heard this week before a Florida jury in the famed wrestler Hulk Hogan's lawsuit against Gawker, the news site that Hogan has accused of violating his privacy by publishing a video of him engaged in a sex act.

The details are about as salacious as they come: pornographic footage of Hulk Hogan having sex with a friend’s wife, taken without his knowledge and later posted on Gawker based on an anonymous tip.

The iconic wrestler (whose real name is Terry Bollea) is suing the site for $100 million, claiming privacy violations and emotional damage after the video was posted in 2012.

Gawker, on the other hand, is claiming it had a right to post the video, which was a matter of "public concern."

Both sides have declared the trial's outcome could have outsize consequences: Hogan is claiming a loss would mean weakened privacy for all Americans; Gawker says that if Hogan prevails, the nation’s press freedoms are at risk.

Legal experts tend to agree that no matter how the case is decided, it will help clarify the largely undefined line between privacy and freedom of expression on the internet.

Hogan will argue that the video’s publication was a unique and humiliating violation of privacy

The grainy surveillance footage in question was taken in 2006 of Hogan and Heather Clem having sex in Clem’s home she shared with her then-husband, radio personality Bubba the Love Sponge Clem (born Todd Alan Clem, though he legally changed his name).

Hogan has claimed that the video was taken without his knowledge or consent, a fact that Bubba Clem disputed to Howard Stern.

Clem says the video was stolen from his office — though no one has accounted for how the video was then distributed.

Gawker then received the full 30-minute video, burned onto a DVD and mailed to its office in Manhattan. Rather than posting the video in its entirety, Gawker cut a "highlight reel" featuring about 101 seconds of the video’s most titillating footage (only about 9 seconds of the cut contain actual sex acts).

But no matter how it surfaced, Hogan’s lawyers now plan to argue to the six-person jury that Gawker’s publication of the video was a crass tool to pull in ad dollars and clicks. It served no purpose for the public good, they’ll say, and inflicted significant emotional and privacy damage to the now-retired wrestler.

"There’s a world of difference between discussing something and showing a pornographic video, something that goes online and can be seen forever," David Houston, Hogan’s personal lawyer, told the New York Times. Hogan’s legal team is not challenging the text of Gawker’s post, which described the full 30-minute video, blow by blow, in lurid and unflattering detail.

Gawker plans to argue in return that as a celebrity who frequently raises details of his own sex life — including the video’s existence — Hogan has created sufficient public interest around the topic to merit the video’s publication.

Houston told the Times that Hogan has been known to say outrageous things in appearances as a wrestling personality. "But that does not mean that Terry Bollea the person has forsaken all rights of privacy," he said.

Hogan is asking for the huge sum in part to deter other publications from publishing similarly slanderous private details about other celebrities, his lawyer said. But First Amendment experts say even if Hogan wins the case, the figure he is asking for is incredibly high.

Gawker thinks posting Hogan's sex tape served a valid purpose

In addition to arguing that Hogan exempts himself from some privacy expectations by virtue of the fact that he’s a celebrity, Gawker will likely also make the case that posting the video of him and Heather Clem ultimately served the public’s interest.

Gawker posted the video seven months after TMZ first reported its existence and five months since the gossip website the Dirty posted screen shots — all after Hogan had repeatedly denied sleeping with Heather Clem. The site’s lawyers will point to these posts as evidence that the public had an interest in seeing the video.

Gawker is purporting that a ruling against it would imperil news organizations across the country from publishing unflattering details about individuals who hold power. It would, in Gawker’s view, dissuade writers from looking into and discussing uncomfortable subjects.

Mary-Rose Papandrea, a law professor at the University of North Carolina and a former lawyer for the National Enquirer, said this case comes down to whether the sex tape was "newsworthy." Of course, newsworthiness is a vague standard that well may have different limits when applied to celebrities as opposed to private citizens.

Historically, the law considers images containing nudity or sexual acts as "private" information. But in speaking repeatedly and in graphic detail about specific sexual encounters, Papandrea said Hogan may have well made his sex life a matter of public concern.

If the jury allows Gawker’s claim to public concern stand, it might well lead to a media free-for-all in which organizations feel welcome to publish increasingly damaging private information about the lives of public individuals.

"Right now, there’s an 'anything goes' mentality when it comes to publishing information about celebrities. If Gawker loses, we might begin to see some rethinking of that mentality," Eric Goldman, co-director of Santa Clara University’s High Tech Law Institute, told Fusion. "If Gawker wins, I think it will further embolden online publishers that anything related to celebrities is fair game."

f. The "Fair Game" doctrine

The "Fair Game" doctrine states as follows:

"ENEMY -- SP Order. Fair game. May be deprived of property or injured by any means by any Scientologist without any discipline of the Scientologist. May be tricked, sued or lied to or destroyed." VIII-6

This doctrine has been vigorously enforced by Scientology in thousands of cases covering a wide spectrum of operations. Scientology has sought to "destroy" many individuals in governments and private agencies through harassive, expensive law suits, attempts to frame individuals for crimes, dissemination of auditing information to the media, friends and relatives, and a general pattern of criminal activity, including burglary, larceny, obstruction of justice, extortion, racketeering, perjury, all designed to attack and destroy a so-called enemy. Much of the material set forth in Section (D) of this subsection relating to Scientology operations in Clearwater are examples of application of the "Fair Game" doctrine.

g. "R2-45"

Despite the general exposure of many Scientology practices, policies and attacks in the media over the past several years, resulting primarily from the F.B.I's seizure of documents from Scientology headquarters, there exists in Hubbard's twisted mind and writings a little known policy called "R2-45" .VIII-7 In the book, "The creation of Human Ability -- A Handbook of Scientology" written by Hubbard and distributed by the Church of Scientology of California, the following quote appears:

"R2-45 -- an enormously effective process for exteriorization, but its use is frowned upon by this society at this time."

"Exteriorization" in Scientology policy, is death. The policy refers to shooting a person in the head. In a short internal Scientology memorandum called "Racket Exposed", Hubbard attacks a number of individuals, subjects them to the "Fair Game" doctrine, and states as follows:

"Any Sea Organization member contacting any of them is to use auditing process R2-45".

It is unknown to the authors of this Report whether the process was used on those individuals.

During a meeting of Scientologists in Phoenix, Arizona, in 1954, Hubbard demonstrated the R2-45 auditing process by firing a shot into the floor during the middle of the meeting. There is some evidence to suggest that between 1975 and 1977, during the F.B.I. investigation of Scientology, meetings of Scientology executives were held in which there were discussions relative to auditing high level F.B.I. members with auditing process R2-45.

The death of at least one Scientologist by means of a pistol shot in the brain has been documented. The death of Susan Meister, who was found dead from a gunshot wound in her forehead at approximately 7:35 p.m. on Friday, June 25, 1971 was allegedly a suicide. The death of Susan took place on the Apollo while it was docked in Tangiers, Morocco. Susan's parents traveled to Morocco seeking to obtain details of her death, and attempted to meet Hubbard to find out what role he and Scientology had played in her death. Susan was twenty three years old at the time and had been proselytized on the streets of San Francisco in the fall of 1970. During the course of her involvement, her letters to her parents gradually became more bizarre, until her death was reported to them.

When Susan's parents first learned of the death, they interviewed Arthur Maren, one of Scientology 's P.R. people, and questioned him whether or not it could be a mistake, and whether it might be someone else. Maren's reply was, "Susan is dead allright, there is no mistake". Later, her parents received a letter from Scientology which stated in part as follows:

"I am sure you understand that the ship's company, an independent Panamanian agency, is under no obligation to the Church of Scientology of California, to provide information that it deems might go beyond the scope of a reasonable inquiry by bereaved parents. In addition to the details Rev. Maren has already communicated to you, (a precis of which is attached), further details of Church activity and doctrine can be found in the literature and book of ceremonies enclosed. As to shipment of remains, the ship's captain has indicated that should you wish local Christian burial with monument, such will be arranged in a Christian cemetery in Morocco, at company expense. If the remains are to be shipped to the United States, which I understand is your desire, the company is regrettably not in a position to bear the considerable costs involved." IX-3

It is interesting to note that the Internal Revenue audit concerning the Church of Scientology of California, and the Panamanian corporation referred to in the above letter were found to be totally controlled and operated by L. Ron Hubbard. In fact, as set forth elsewhere in this Report, millions of dollars were illegally funneled from California into the Panamanian corporation. Thus, Scientology's across-the-board deception of Susan Meister, from the time she was proselytized into joining the Organization, to the time she died as a result of so joining, was extended to her "bereaved parents".

But a ruling against Gawker would require the jury to contradict precedent. In the past, when cases involving offensive or private information has reached the Supreme Court, justices have erred on the side of free expression. In 1988, for example, the Court ruled in Hustler Magazine v. Falwell that Hustler had the right to publish a damning parody of the prominent fundamentalist minister Jerry Falwell, and that he could not collect damages for emotional harm.

In his majority opinion, Chief Justice William Rehnquist wrote that banning content on the basis that it was deemed outrageous "would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression, and cannot, consistently with the First Amendment, form a basis for the award of damages for conduct."

In line with that precedent and others, a federal court threw out a similar suit Hogan filed against Gawker in December 2012.

"The courts have historically been reluctant to second-guess editorial decisions," Papandrea said. But with news traveling further and faster on the internet than ever before, "that could be changing."

"The courts have historically been reluctant to second-guess editorial decisions"

And though the current case is being litigated in state court, it is one of a small handful of such free expression lawsuits to go to trial, and the outcome will likely serve as a guide to judges and lawyers across the country.

The trial has gained such outsize significance because it is perhaps the first legal test of Its kind in which deeply private information has circulated around the internet. Courts in the past have shown deference to editorial decisions, taking news organizations’ claims that certain facts or photographs are essential to storytelling. But with the understanding that the internet can be a uniquely destructive space, judges are beginning to second-guess that free-for-all standard.

Revenge porn is a genre of internet harassment wherein perpetrators post pornographic photos or videos of a victim, linked to his or her name, without consent. Typically, the perpetrator is a former sex partner who uses the threat of revenge porn as a form of blackmail, though the reasons for posting such content can vary.

Revenge porn has become a prevalent enough problem that 26 states to date— including Florida, where Hogan's case is being argued — have passed laws limiting it. The laws seek to ban the crime without encroaching any further on individuals’ First Amendment rights.

Still, the issue has not clearly been litigated, and the decision on the Hulk Hogan tape could have an impact on other victims seeking to protect themselves from revenge porn through the courts.

If the court decides in Gawker’s favor, it’s possible that that other pornographic content, posted without a victim’s consent, could bolster other revenge porn cases to receive First Amendment protection as well.

"If Hulk Hogan is newsworthy, then a case of an unconscious [woman] being raped is too ...

Playful banter resumes amidst the afterglow. Hulk gets up naked and accepts the invitation from the woman to take a shower.

and some media might publish that saying we should be seeing it," University of Maryland law professor Danielle Citron told Fusion. "Everything is newsworthy once people are interested."

Online mob attacks also implicate state laws penalizing those who harass or stalk another by communicating words, images, or language through electronic mail or the Internet, directed to a specific person, which would cause a reasonable person substantial emotional distress or fear of bodily harm.237 Some states explicitly criminalize posting messages with the intent to urge or incite others to harass a particular individual.238...

Title 42 U.S.C. § 1985(3) allows damage suits against: "[T]wo or more persons in any State or Territory [who] conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws . . . ."240

To similar effect, 18 U.S.C. § 241 establishes criminal penalties for “two or more persons [who] go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege” that is “secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.”241...

Although online mobs express themselves and their autonomy through their assaults, their actions also implicate their victims’ autonomy and ability to participate in political and social discourse.272 Self-expression should receive no protection if its sole purpose is to extinguish the self-expression of another.273 As Owen Fiss argues, sometimes we must lower the voices of some to permit the self-expression of others.274 Similarly, Cass Sunstein contends that threats, libel, and sexual and racial harassment constitute low-value speech of little First Amendment consequence.275 Rarely is that more true than when one group of voices consciously exploits the Internet’s aggregating power to silence others and its disaggregative power to escape social responsibility for the group’s actions....

A core problem in theorizing the First Amendment is distinguishing expressions from actions. This speech-conduct dichotomy pervades free speech discourse.279 Advances in law and technology, however, complicate this distinction as they make more actions achievable through “mere” words. Indeed, the Internet’s very essence is to aggregate expressions so as to convert them into actions. Some Internet behaviors that are akin to the offline crimes of breaking and entering and vandalism – hacking and denial-of-service attacks – are accomplished by sending communications to other computers. Moreover, the Internet’s powerful aggregative capacity converts seemingly individual expressions (e.g., visiting a website or sending an e-mail) into criminal acts through their repetition (e.g., denial-of-service attacks and image reaping)....

Online mobs do indeed engage in gossip. Sites such as JuicyCampus promote themselves as gossip facilitators. But the attacks perpetrated by online mobs have little to do with building bonds among disparate communities. Rape threats, lies, damaging photographs, and denial-of-service attacks not only preclude any connection with differently-minded group members, but they also sever the victim’s connections with her own community. The attacks inflict serious social harm rather than generating ideas in popular culture or enforcing positive social norms. Defeating such discrimination outweighs the imperceptible contribution that online mobs make to our cultural interaction and exchange.

A Judge Told Us to Take Down Our Hulk Hogan Sex Tape Post. We Won't.by John Cook4/25/13

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Yesterday the Hon. Pamela A.M. Campbell, a circuit court judge in Pinellas County, Fla., issued an order compelling Gawker to remove from the internet a video of Hulk Hogan fucking his friend's ex-wife, as well as a 1,400-word narrative of the video written by former Gawker editor A.J. Daulerio and 466 user-submitted comments. Here is why we are refusing to comply.

Then another man's voice can be heard from inside the room off-camera and both Hulk and the naked woman engage in idle chit-chat with the mystery man. Because the woman closely resembles Mrs. Clem, some have suggested that the voice of the mystery man is, in fact, Bubba the Love Sponge. If this is true, Bubba has no problem sharing his wife with his best friend.

Campbell made the command at the request of Charles J. Harder, an attorney for Hogan. Hogan is suing Gawker Media and a variety of other parties in Florida state court for, among other things, invasion of privacy stemming from publication of the video of him fucking his friend's ex-wife and its accompanying narrative. Hogan initially brought a copyright claim against us in federal district court, but after a judge issued a series of preliminary rulings disadvantageous to his case, he dropped the matter and shifted his focus to the state invasion of privacy claim.

Yesterday, Campbell held a hearing to consider Harder's motion for a temporary injunction against our continued publication of the video and accompanying text. This is what Campbell ordered at the hearing's end, from a transcript of the proceedings provided by Gawker's in-house counsel:

I'm ordering that the Gawker.com remove the sex tape and all portions and content therein from their websites, including Gawker.com. Ordering to remove the written narrative describing the private sexual encounter, including the quotations from the private sexual encounter from websites and including Gawker.com.

This afternoon, she released a written order saying, in substance, the same thing. It requires us to remove the video as well as "the written narrative describing activities occurring during he private sexual encounter, including: (a) all descriptions of visual images and sounds captured on the Sex Tape or any other video of this private sexual encounter, and (b) all direct quotations of words spoken during this private sexual encounter and recorded on the Sex Tape or any other video of this private sexual encounter." Campbell, who represented the parents of Terri Schiavo in their effort to portray their daughter as conscious and alert and was appointed to the bench by former Florida Gov. Jeb Bush, described her order as serving "the public interest." She stated very clearly during the hearing that she had never watched, and did not intend to watch, the video that she was ordering us to remove: "I'm not going to look at the tape. I don't think at this point in time I need to look at the tape."

We publish all manner of stories here. Some are serious, some are frivolous, some are dumb. I am not going to make a case that the future of the Republic rises or falls on the ability of the general public to watch a video of Hulk Hogan fucking his friend's ex-wife. But the Constitution does unambiguously accord us the right to publish true things about public figures. And Campbell's order requiring us to take down not only a very brief, highly edited video excerpt from a 30-minute Hulk Hogan fucking session but also a lengthy written account from someone who had watched the entirety of that fucking session, is risible and contemptuous of centuries of First Amendment jurisprudence.

Campbell's grasp on the ramifications of that jurisprudence, such as it is, can be gleaned from a moment in the transcript of yesterday's hearing wherein she seemed to fail to understand the basic First Amendment principle that "speech" includes forms of communication beyond word-sounds coming out of people's mouths. This is a moment when Gawker Media's attorney, Gregg Thomas, is interrupted by Campbell to attempt to clarify a point:

THOMAS: Since 1789, we've had a Constitution that honors speech. And I'm the last person here, Your Honor, to tell you that this is the speech of the highest quality or tenor, but the cases seem to say Your Honor can't make that judgment. You can't —

CAMPBELL: Let me ask you this. I'm sorry for interrupting, but directly on that point. This is the part that was irritating to me in the lawyers' pleading, where they are describing comments that are made allegedly during this tape. So is that the speech that you are trying to protect? The speech that was made during the scope of this videotape between these two consenting adults having sex in a private setting with allegedly no notice to the plaintiff? I'm not sure what speech you're trying to protect.

THOMAS: Your Honor, I'm trying to protect multiple parts of speech. The first part is the printed version of the story. This is not a sex tape by itself, Your Honor. There is a printed version...and a sex tape that goes with it. It's not a sex tape alone. Yes, Your Honor, I'm trying to protect that speech. I'm also trying to protect the speech that's there....

CAMPBELL: I'm thinking this injunction is only about the tape.

THOMAS: Yes, Your Honor. I understand that. But I also think, Your Honor, when we think of the history of the First Amendment, we think of the Pentagon papers, maybe because I'm a First Amendment lawyer. There, a top secret document that was clearly stolen that could have injured men in war in Vietnam was considered by the United States Supreme Court. And they said we're not going to stop its publication. The analogy perhaps is not appropriate.

CAMPBELL: It doesn't even have any — it's apples and oranges, worse than that actually.

THOMAS: Well, Your Honor, I don't think I'm out of order when I say speech is speech.

Despite her misapprehension that the issue at hand was "only about the tape," Campbell has seen clear to order us to disappear a 1,400-word article—words composed and published by Gawker Media editorial employees—simply because Hulk Hogan didn't like it.

A lawful order from a circuit court judge is a serious thing. While we vehemently disagree with Campbell's order with respect to the video itself, we have chosen to take it down pending our appeal.

But the portion of the order compelling us to remove the entirety of Daulerio's post—his words, his speech—is grossly unconstitutional. We won't take it down.

You can read the transcript of yesterday's hearing, as well as Campbell's ruling, below. And go here to read Daulerio's account of watching Hulk Hogan fuck his friend's ex-wife for 30 minutes, as is your right. And if you'd really like to watch the tape for some reason, it's online here.

This cause came before the Court on Plaintiffs Motion for Temporary Injunction (the "Motion"). The Court having reviewed and considered the Motion and Response papers, all oral argument at the hearing, and the Court file, and being otherwise fully advised,

IT IS ORDERED:

The Motion is GRANTED for the reasons stated on the record at the hearing held on April 24, 2013.

1 . Ordered to remove the audio and video recording of Plaintiff Terry Gene Bollea in a private bedroom with Heather Clem, which recording includes depictions of Mr. Bollea naked and engaged in sexual activity (the "Sex Tape"), which is currently posted at http://www.gawker.com ("Gawker.com");

2. Ordered to remove from their websites, including Gawker.com, the written narrative describing activities occurring during the private sexual encounter, including: (a) all descriptions of visual images and sounds captured on the Sex Tape or any other video of this private sexual encounter; and (b) all direct quotations of words spoken during this private sexual encounter and recorded on the Sex Tape or any other video of this private sexual encounter;

3. Enjoined from posting, publishing, exhibiting, or broadcasting the full-length video recording, from which the Sex Tape was derived, and all portions, clips, still images, audio, and transcripts of that video recording;

4. Ordered to turn over to Mr. Bollea' s counsel of record, Charles J. Harder, Esq. of Harder Mirell & Abrams LLP, all versions and copies of the full-length video recording, from which the Sex Tape was derived, and all portions, clips, still images, audio, and transcripts thereof within ten (10) days of the date of this Order; and

5. Mr. Bollea is not required to post a bond.

DONE AND ORDERED in Chambers at Pinellas County, Florida, this, 25 day of April 2013.

Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anywayby A.J. Daulerio10/04/12

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Because the internet has made it easier for all of us to be shameless voyeurs and deviants, we love to watch famous people have sex. We watch this footage because it's something we're not supposed to see (sometimes) but we come away satisfied that when famous people have sex it's closer to the sex we as civilians have from time to time. Meaning: it's hardly ever sexy the way we expect it to be sexy, even when the participants are ostensibly more attractive than the majority of our sex partners will be.

But naked, they're still having sex like people who don't usually have sex on camera. Even if their dicks are big enough to smash a boat horn with authority, or their faces are lit up like Gulf War scud missile footage after midnight, their sex- purposeful, vaunted celebrity sex-is still incredibly dull. The normalcy of it is exciting, though. When you see glimmers of sloppy kissing or some shoulder moles or just an earnest, breathy, post-coital "iluvvvvuuuu..." it becomes mesmerizing.

Up top, you'll see one minute from the 30 minutes of footage taken of 59-year-old Hulk Hogan, professional wrestler, Real Life American Hero to many, fucking a woman rumored to be the ex-wife of his best friend, a famous radio DJ named Bubba the Love Sponge. This footage was stealthily circulated last April. TMZ reported its existence, The Dirty showed some screen shots, and Hulk lawyered up because he claims he was "secretly filmed." Last week, a burned DVD copy of Hulk having sex with the woman rumored to be Heather Clem (Bubba's ex-wife), was delivered to us through an anonymous source. They wanted no payment. They wanted no credit. Their only request was that we watch it. So I did—all 30:17 of it—and hyperbole aside, it's a goddamn masterpiece.

It opens with Hulk Hogan performing oral sex on the woman as she lays on the bed. Then another man's voice can be heard from inside the room off-camera and both Hulk and the naked woman engage in idle chit-chat with the mystery man. Because the woman closely resembles Mrs. Clem, some have suggested that the voice of the mystery man is, in fact, Bubba the Love Sponge. If this is true, Bubba has no problem sharing his wife with his best friend.

"You guys do your thing," this man says. "I'll be in the office if you need me."

He exits swiftly and allows Hulk and this woman their privacy. Hulk and the woman engage in more chit-chat and Bubba's name is mentioned. The woman says "We just fucked earlier today." Hulk asks "Who? You and Bubba?" She just laughs. It doesn't matter.

Hulk strips down. His tan line is exposed and his hairline is vulnerable and silly without the do-rag, but there is sex to be had regardless. Hulk must get hard, though, and the woman is eager to make that happen. Her fellatio is successful and Hulkamania is about to run wild on her but then his cell phone rings. He checks it because he thinks it might be his son, Nick. The ringtone on Hulk Hogan's phone is a song by his daughter, Brooke Hogan, called "About Us" featuring Paul Wall. He is a proud father.

But Hulk checks the caller and does not want to talk that person at all. "Fuck no," he says.

He stands on the side of the bed and the woman scoots up from the pillows and resumes giving the former WWE heavyweight champion of the universe a blowjob. It is a slow, dutiful blowjob and Hulk is thrusting himself into her mouth to speed up the process. This goes on for a few minutes and at one point Hulk examines the canopy bed curtains in a way that suggests he'd like to purchase this particular style for his own canopy bed some day. She takes a break. She spits loudly. She resumes for a few seconds, but it appears the spit has worked because Hulk mutters something in a growly sex voice. The woman removes him from her mouth and spins around on the bed like an excited puppy. She stands. They grope each other and stare at each other. "What did you say?" she asks, laughing and tying up her hair in a pony tail. Then they both laugh because there was a miscommunication during the sex act and they don't want to feel awkward.

"You got a rubber? I want you to climb on top of me," Hulk repeats, but not as sexy as it was the first time, which she didn't hear. Yes, she does have a rubber. Then we watch Hulk stand up and clumsily attempt to roll a condom on to his erect penis which, even if it has been ravaged by steroids and middle-age, still appears to be the size of a thermos you'd find in a child's lunchbox. Hulk hurls his massive body on to the canopy bed and the woman climbs on top, finally, and they begin. There is lots of squealing and moaning from her and she says stuff like, "I want to make you cum" and, "Your dick feels so good inside me"—that sort of thing. There is light spanking from Hulk done to show he supports her efforts and is close to orgasming.

Then, Hulk grunts. Hulk grunts more. Then Hulk grunts like he's doing an impression of old Hulk Hogan grunting right before he's about to cum/come. Climax happens for both participants and they seem pleased with the results. The woman provides two tender kisses on Hulk's upper chest. Hulk says, "Mmmk," because he's a little bemused by the situation he finds himself in on this day as we'll soon find out. Here's how Hulk explains his reaction to the woman he just had sex with:

"The rubber almost came off," he says.

She's not concerned. "It did what it was supposed to."

Hulk thought that was funny and makes her repeat it.

She does so and then peels off the rubber from his penis and carries it away. She holds the condom full of Hulk jiz like it's a random dirty sock she found in the dryer. Hulk is still coming down from his orgasm and is making quick, loud Tony Soprano wheezes.

"Oh my god," he exhales. "Can't believe I have to drive back home. Fuuuuck."

The woman giggles, climbs back into bed with him and reminds Hulk that this is why he should move to this neighborhood. They engage in some cuddling for a couple minutes but Hulk does have to go because he has to go meet his son Nick who was presumably no longer in prison during the time this was filmed. Playful banter resumes amidst the afterglow. Hulk gets up naked and accepts the invitation from the woman to take a shower. But then he tells the woman that he's shocked that the fucking took place at all because he'd just eaten ten minutes before he got there and "felt like a pig." He had sashimi. He smacks his large stomach and makes his way to the shower.

Hulk begins to put on his clothes. "Bubba's shirt," he says when he puts on his shirt. He's pulling on his jeans one giant leg at a time, still mumbling. The woman is naked in bed and not at all concerned by his early exit. She does suggest that he go talk to the mystery man in the office before he leaves. But Hulk has to go meet his son Nick at midnight. Then Hulk tells a story about how Nick's new girlfriend has a twin sister who called Hulk on the phone. Hulk reveals that the young woman inquired about his divorce and, if that's true, she would like to be the first to go out with him.

Hulk sits on the bed and puts on his socks. "You're a hot commodity," the woman says to Hulk. "Yeah, right. Huh," Hulk says. Even Hulk Hogan needs to be told he's handsome sometimes.

But he has to go, he leans over and kisses the woman. They joke about him loving and leaving but it's okay. "Be cool," he says to the woman on his way out the door. They thank each other for the sex. "You're awesome," Hulk says on his way out the door. "So are you," she says back in a very sincere way. Everybody's awesome. Hulk asks her if he should close the door on the way out. "No, leave it open," she says. "Thank you." Off he went.

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Revenge porn is a genre of internet harassment wherein perpetrators post pornographic photos or videos of a victim, linked to his or her name, without consent. Typically, the perpetrator is a former sex partner who uses the threat of revenge porn as a form of blackmail, though the reasons for posting such content can vary.

Revenge porn has become a prevalent enough problem that 26 states to date— including Florida, where Hogan's case is being argued — have passed laws limiting it. The laws seek to ban the crime without encroaching any further on individuals’ First Amendment rights.

Still, the issue has not clearly been litigated, and the decision on the Hulk Hogan tape could have an impact on other victims seeking to protect themselves from revenge porn through the courts.

If the court decides in Gawker’s favor, it’s possible that that other pornographic content, posted without a victim’s consent, could bolster other revenge porn cases to receive First Amendment protection as well.

"If Hulk Hogan is newsworthy, then a case of an unconscious [woman] being raped is too ...

Playful banter resumes amidst the afterglow. Hulk gets up naked and accepts the invitation from the woman to take a shower.

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Nick Denton, left, founder of Gawker Media, and Albert J. Daulerio, a former editor in chief of Gawker, listening to testimony on Wednesday during a trial over a sex tape involving Hulk Hogan. Credit Steve Nesius/Associated Press

ST. PETERSBURG, Fla. — A palpable sense of shock rippled through a courtroom here Wednesday morning when the former editor in chief of Gawker.com was shown in a videotaped deposition suggesting that almost anything goes when it comes to the newsworthiness of celebrities’ sex videos.

The former editor, Albert J. Daulerio, a defendant in an invasion-of-privacy lawsuit brought by the retired wrestler Hulk Hogan, was asked by the plaintiff’s lawyer where he drew the line when it came to posting videos of people having sex.

“Can you imagine a situation where a celebrity sex tape would not be newsworthy?” asked the lawyer, Douglas E. Mirell.

“If they were a child,” Mr. Daulerio replied.

“Under what age?” the lawyer pressed.

“Four.”

Gawker said later in a statement that Mr. Daulerio was being flippant.

Still, the exchange highlighted the way that Gawker’s culture of reporting on some of the most intimate aspects of the lives of celebrities and prominent newsmakers was being put on trial.

Nick Denton, founder of Gawker, said he believed that the tape was worth posting. Credit Pool photo by Steve Nesius

Mr. Daulerio’s testimony took place during depositions taken last year in advance of the trial, which began on Monday, in the suit by the retired wrestler, known in the proceedings by his legal name, Terry G. Bollea, against Gawker Media; its founder, Nick Denton; Mr. Daulerio; and others.

Mr. Bollea is seeking $100 million in damages, saying that amounts to the harm he suffered after Gawker posted in 2012 a secretly recorded video showing him having sex with a friend’s wife.

The case is prompting significant questions about how far First Amendment rights stretch in an era when the unregulated Internet is ripe for abuse by anyone with a computer.

In addition, testimony this week by Mr. Daulerio and other current and former members of Gawker’s staff has raised a curtain on the culture of the website and others like it that traffic in salacious fare in an effort to gain readers.

Asked whether sex sells, Mr. Daulerio replied, “I’m sure.”

In such a culture, he went on, it was “pretty standard operating procedure” to seize upon and publish photographs and videos of celebrities in compromising or intimate situations, regardless of whether the celebrity might object or be embarrassed. Mr. Daulerio conceded that no such consideration guided Gawker’s publication of lewd images of the former Green Bay Packers quarterback Brett Favre or of photographs of a topless Duchess of Cambridge.

The former wrestler Hulk Hogan is suing Gawker Media over a sex tape it published. Credit Pool photo by Steve Nesius

“She’s a public figure, and those pictures were published elsewhere,” Mr. Daulerio said, referring to the duchess, the former Kate Middleton. He acknowledged that there had been no discussion in the Gawker newsroom at the time whether the publication of the pictures constituted an invasion of her privacy.

Similar thinking, Mr. Daulerio said, dictated the site’s handling of the video of Hulk Hogan, which he noted had been provided anonymously to him in the mail and for which no money had changed hands.

“I was very enthusiastic about writing about it,” Mr. Daulerio said. He explained that he had “enjoyed watching the video” and was eager to attach his commentary to it on the site.

“I found it very amusing,” he said. “I thought it was newsworthy, and it was something that was worth publishing.”

“I don’t know, dude. Like, it was just fun…,” said Judge David Gill, reading Bollaert’s words from a transcript. “At the beginning it was kind of fun and entertaining, but now it’s kind of ruining my life.”

In response to a question from Mr. Mirell, the defendant said that neither he nor anyone else at Gawker had made any attempt to contact Mr. Bollea to ask him whether he was in fact the man in the grainy video, and how he felt about Gawker’s intention of publishing it.

“You didn’t really care, did you?” Mr. Mirell suggested.

“No,” Mr. Daulerio said.

A moment later, after an objection from a lawyer for Gawker, Mr. Mirell persisted. “So it’s fair to say that whether he suffered emotional distress or not, that played no part in your decision whether or what to publish,” he said.

“Correct,” Mr. Daulerio replied.

Videotaped testimony by his boss, Mr. Denton, was also shown to the jury, later in the day, even though the two men were sitting behind their lawyers in the courtroom. The plaintiffs’ use of taped depositions at this early stage of the trial seemed intended to stave off cross-examinations by the defense, which might reduce the impact of their words on the videos. Both defendants, however, are on their own legal team’s list of witnesses, to be called to the stand when it is the defense’s turn to present evidence at the trial.

Under questioning in the deposition, recorded in October 2013, Mr. Denton said that contrary to Mr. Daulerio’s feelings, he had not been “very excited” by news that Gawker had received a video showing Hulk Hogan having sex with a woman on a four-poster bed. “We all have sex,” Mr. Denton said, noting that he preferred stories that had “some kind of meaning.”

Nevertheless, Mr. Denton did not impede the video’s publication, although he advised his editor “not to put up the whole tape.” A video editor cut it to 1 minute 41 seconds, from roughly 30 minutes.

Asked whether he or his staff had looked into the tape’s provenance, Mr. Denton demurred. “We can’t always determine the circumstances in which a film was made,” he said.

A letter from a lawyer for Mr. Bollea, asking Gawker to take down the video shortly after it had been posted, “wasn’t persuasive,” Mr. Denton said. “We continued to believe in its newsworthiness.”

The video remained on the site for about six months, until a court ordered its removal. Lawyers for Mr. Bollea said they had no intention of showing the tape to the jury during the trial.

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Terry Bollea, who wrestled as Hulk Hogan, was questioned on Tuesday during his trial against Gawker. Credit Pool photo by John Pendygraft

ST. PETERSBURG, Fla. — On the witness stand for a second day, Hulk Hogan was far from the chest-thumping, T-shirt-tearing champion wrestler admired for years by his fans for his braggadocio and his swagger.

Under quiet but relentless cross-examination Tuesday by a lawyer for the website Gawker, which he has sued for invasion of privacy, the wrestler was subdued, even melancholy. Referred to in court by his real name, Terry G. Bollea, and wearing a cross on a silver chain around his neck, he appeared intent on keeping calm under the onslaught, with only the occasional trace of irritation in his responses. Even then, he consistently addressed the lawyer, Michael Sullivan, as “sir.”

“I’m not the same person I was before all this stuff happened,” said Mr. Bollea, 62, and retired from the ring. “I don’t have my guard up anymore.”

Mr. Bollea is seeking $100 million in damages from Gawker, which in 2012 posted a secretly recorded video of him having sex with a friend’s wife. Mr. Sullivan zeroed in on the plaintiff’s admission that as a larger-than-life celebrity in a rough-and-tumble profession, he was in the habit of exaggerating or being untruthful.

By returning to the point again and again, Mr. Sullivan was clearly seeking to raise doubt among the six jurors about Mr. Bollea’s veracity in the case.

The defense attorney also spent considerable time focusing on the plaintiff’s public behavior, much of it sexually provocative, to underscore the notion that the release of the video of him having sex could not have been, in the public’s mind, an unusual or remarkable occurrence.

The case, being heard in a courthouse in downtown St. Petersburg, near Mr. Bollea’s hometown, has raised fundamental issues about privacy rights and freedom of the press in a technologically nimble age in which anyone can publish the most private and salacious pictures and videos online.

While acknowledging his often outrageous self-promotional behavior in the past, Mr. Bollea insisted that he had nothing to do with producing or posting the video — recorded in the home of a Tampa shock-radio host in 2007 — and that its public airing was shocking and disturbing.

“I was concerned that people would think I had something to do with this,” Mr. Bollea told the jury. “I would never do that to my personal life.”

Asked by Mr. Sullivan why he had not insisted that interviewers like Howard Stern refrain from asking him about the video if he was so concerned about its dissemination, Mr. Bollea suggested that he had no power to alter the course of such a conversation.

“I was on an entertainment show: I had to be an entertainer,” Mr. Bollea said, referring to Mr. Stern’s program. “When you’re on his show, you know it’s a character-driven show, so you just roll with it. You have to take the good with the bad.”

Occasionally, the plaintiff bristled — if only slightly — at the lawyer’s questions, as when Mr. Sullivan referred him repeatedly to an 835-page deposition in front of him on the witness stand.

“I’m sorry, buddy,” he said, in a rare departure from protocol. “You need to tell me what line you’re starting on.”

Observed by a large contingent of reporters from around the country, the former wrestler gently rebuffed attempts by Mr. Sullivan to paint him as someone who carelessly and routinely flaunted his sexuality and his conquests, and for whom even the most intimate personal details were fodder for publicity.

Mr. Bollea insisted that any such disclosures in public were purely an act, a crucial component of his character as Hulk Hogan. In that context, he defended radio and television interviews in which he discussed his love life, the size of his penis, and his daughter’s sexuality. Mr. Bollea said also that his descriptions of a love affair in a memoir, and reality-show scenes of him sitting on a toilet, his pants around his ankles, were similarly acceptable when viewed as part of his public persona.

But the defense attorney’s questions seemed to imply that Mr. Bollea’s propensity for such disclosures — which continued after the posting in 2012 of the video at issue — was at odds with his claim that his privacy had been violated by the images taken from a security camera in his friend’s bedroom.

Mr. Bollea resisted that notion. “My problem,” he said, “is with the videotape that you guys put out, that lives forever on the Internet.”

He acknowledged that a celebrity must put up with certain pressures not visited on ordinary mortals. “I’m kind of concerned about Hulk Hogan’s privacy, but you kind of give it away,” he said. “But in the privacy of your own home, no one invades my privacy.”

Under subsequent questioning by one of his attorneys, Kenneth G. Turkel, Mr. Bollea was pressed to speak again of his reaction to the release of the video.

“When the sex tape hit, my whole world turned upside down,” Mr. Bollea said, noting that he could not eat or sleep for days at a time. Later, when he found out that his shock-radio friend, known as Bubba the Love Sponge, had been responsible for filming the encounter, he said, “I was down as far as I could go.”

“It’s not something you can walk away from,” he went on. “It stays with you.”

The camera in the bedroom had been installed by David Rice, the chief engineer on Bubba the Love Sponge’s show, at the request of the radio host. Mr. Rice, whose testimony in a deposition was read aloud to the jury later in the afternoon, said the camera was deliberately set up so that it would operate only if someone slid a disk into the recorder and pushed a button, cementing the plaintiff’s contention that the taping of Mr. Bollea’s sexual encounter had not been an accident.

Another witness on Tuesday was Jules Wortman, a former public relations executive at TNA Impact Wrestling, with which the plaintiff was once affiliated. In videotaped testimony, she described Mr. Bollea as getting “teary” after a “Today” show appearance in which he spoke about the video, and said the host Kathie Lee Gifford commiserated with him in a hallway.

“Kathie Lee was hugging him, and she said, ‘I understand when your private life gets played out in public,’ ” Ms. Wortman recalled. “He was emotional, and he excused himself to go to the bathroom. He was in there for a little while.”

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ST. PETERSBURG, Fla. — Taking the stand as the first witness in his $100 million invasion-of-privacy lawsuit against the website Gawker, the former wrestling champion Hulk Hogan told a jury on Monday that he had been “completely humiliated” by the public release of a video that showed him having sex with his now-former best friend’s wife.

The 62-year-old plaintiff — whose real name is Terry Gene Bollea — insisted he was unaware that a camera was recording the encounter, which he said had occurred only because his marriage was falling apart and his friend and his friend’s wife kept insisting that he have sex with her.

“I was depressed,” Mr. Bollea, wearing his trademark black bandanna pulled low over his forehead, told the six-person jury in Pinellas County Circuit Court. “I gave up and gave in. I felt that those people loved me.”

The trial, which is expected to last at least two or three weeks, is the latest prominent legal battle to highlight the murky line between the right to privacy and the right to free speech. Both sides have pointed to potential ramifications of the case: Mr. Bollea’s lawyers cautioned that the privacy of many Americans could be compromised, while Gawker cited the damage a guilty verdict would inflict on long-held freedoms of the press.

In opening arguments, Shane Vogt, a lawyer for the former wrestler, said that Gawker and its editors had deliberately shown his client “naked and exposed to the world” for six months on the site, generating millions of views, despite repeated requests by Mr. Bollea to take the video down. Mr. Vogt said that the situation had caused extreme “emotional distress and harm” to his client, a central point in Mr. Bollea’s pursuit of damages in the case.

“If they had taken down the video,” Mr. Vogt said, “we wouldn’t be here today.”

The 30-minute video, apparently filmed in 2007 and later provided to Gawker, garnered five million page views when it was posted in an abridged version on the site in 2012 and 2.5 million views on other sites that posted it subsequently, Mr. Bollea’s lawyer said. In posting the video, he continued, Gawker allowed the public to watch Mr. Bollea having sex in a private bedroom without his knowledge or consent.

Gawker’s founder, Nick Denton, and its former editor, A. J. Daulerio, who is also named in the suit, “knowingly and maliciously” published what Mr. Vogt called the pornographic images for the sole purpose of financial gain. The posts violated Florida law, he said — specifically a measure that prohibits the publication of private communications without permission — as well as basic human decency.

“They’re going to try to tell you that what they were doing was news,” Mr. Vogt said, in an effort to dismiss a crucial element of the defense’s case: that the activities of well-known people are a subject of public concern. “They crossed the line when they posted this video. It was not newsworthy.”

In his opening statement, a lawyer for the Gawker team, Michael Berry, told the jury that videotapes featuring celebrities like Paris Hilton and Kim Kardashian having sex have become a “cultural phenomenon,” and that such images are of interest to the public and therefore protected by the First Amendment.

Mr. Bollea himself had encouraged and participated in efforts to disseminate facts and commentary about the most intimate details of his life, Mr. Berry said. Describing the former wrestler as “a real American hero” and, when he was younger, “the ultimate object of desire,” Mr. Berry said the plaintiff had been more than willing for years to talk about his sex life, including in two autobiographies, on a reality television series called “Hogan Knows Best” and on Howard Stern’s radio show.

This flow of information about his life was fine, Mr. Berry said, “until he didn’t like what Gawker had to say.’’

Mr. Bollea, who will continue testifying on Tuesday, openly discussed the video at issue in an appearance on a television show run by the website TMZ and said he did not know who the woman with him was because he had been “running wild” with several women at the time, Mr. Berry said, quoting an earlier statement by Mr. Bollea.

In fact, she was Heather Clem, who was then married to Todd Clem, Mr. Bollea’s onetime friend and a radio “shock-jock” whose legal name is Bubba the Love Sponge. The former wrestler also sued the Clems after the tape became public, a case that was settled out of court.

Testimony by Ms. Clem, videotaped in a deposition on Jan. 26, 2015, was shown on screens in the courtroom before Mr. Bollea took the stand.

She said that her husband, from whom she is separated, “could be intimidating and hurtful” and “would berate you until you did what he wanted.”

Although she did not explicitly say so, Ms. Clem seemed to be suggesting that having sex with Mr. Bollea was something her husband had insisted upon. She also said that she played no part in disseminating the video and that she did not discuss with her husband who might have done so.

In his testimony, Mr. Bollea said he had been stunned to learn that the man he considered his best friend, who acknowledged having an “open marriage,” might have used a camera installed in the bedroom to record the sexual encounter. Mr. Bollea said the entire experience was “surreal.”

“Everything had gone to hell in a handbag,” Mr. Bollea said, describing a period in 2012 when the tape became public. “I still held out the hope that he had not done this to me.”

When he learned that his friend’s voice could be heard at the end of the tape suggesting to his wife that they would be able to retire on the money they might make from selling the video, Mr. Bollea said, “my hands just started shaking.”

“He made me believe that he was my best friend and that he would never lie to me,” said Mr. Bollea, who noted that he often had difficulty establishing close friendships.

Under cross-examination, Mr. Bollea acknowledged that when he was “in character” as Hulk Hogan, he would often strike a fictional pose and did not tell the truth, as when he asserted in television and radio interviews in 2012 that he had watched the video on Gawker. He now claims he has never seen it.

“I also said I body-slammed Moby Dick and pulled a bumper off a Cadillac,” he said. “It gives you artistic license to be a jerk.”

We're here today for plaintiff's Motion for Temporary Injunction. I have reviewed both the plaintiff's and the defendant's responses that had been filed for this hearing.

First off, I would like to say one initial thing, and that is professionalism, civility, integrity. Anything less will not be tolerated. I would like to remind the parties that when they file pleadings, they are lawyers first. They are officers of the Court first. You write pleadings for legal proceedings, not for tabloid or sensational effect.

So, please, the next time any future filings that are in this court file, please keep that in mind. I think some of the language that was used, especially in the response, is offensive. I think that it is unnecessary, that it is more written for sensational issues. I will remind you all that you are professionals and lawyers first above anything else. So please keep that 5 in mind in the future in these kinds of filings.

All right. So, Mr. Harder, are you making the argument?

MR. HARDER: I would like to, Your Honor.

MR. THOMAS: Go ahead.

THE COURT: Thank you.

1MR. HARDER: Your Honor, I'm going to try to avoid repeating anything from the moving papers because I assume you've read them and you don't want to hear it again. I have read the response. I was in route in an airport, and I read it on my iPhone, but I got a sense of it.

I did want to address the issue of the collateral estoppel argument first. There are several cases that say that a ruling on a preliminary injunction is not collateral estoppel because it is not a ruling on the merits of the case, and it does not stop a second hearing on a second motion for preliminary injunction.

I can -- I would cite to the Abbott Laboratories case, 473 F.3d 1196 from the Federal Circuit, 2007, which says that, "Rulings on earlier preliminary injunction motions do not have collateral estoppel effect in subsequent preliminary injunction proceedings.

In the 11th Circuit controlling here in Florida, there's a case called David Vincent, Inc. vs. Broward County, 200 F.3d 1325, 11th Circuit, 2000. In that case, the Court held that findings made on a prior motion for preliminary injunction proceeding were not binding in 1subsequent proceedings and do not have collateral estoppel and res judicata effect.

I'm sure that there are lots more cases out there. I just saw the opposition yesterday. So we could provide additional cases.

I think it's pretty clear that the ruling that was in the Federal court was not on the merits. We filed a temporary restraining order immediately after we had been retained in the case when this sex tape video was on the internet. And we immediately filed because we felt it was an emergency, and we wanted to stop the spread of that tape. We wanted to put an end to it right away.

We filed initial papers. We expected that we would be able to file subsequent papers. We were denied leave to file additional papers which had a lot more authority.

And so it was a hearing that took place very quickly, and I know that there were other requests made that were related to that, but that was the only hearing that was ever -- that has ever taken place on those issues.

So we believe that the Federal court did a rush job on that preliminary injunction motion 1and didn't really give it the full consideration with all of the cases that we were prepared to put before the Court. We also think that the Court got it wrong, and we explained to some extent why we think that. I'm not going to go into that because it's in our papers.

I do want to point out to the Court, Your Honor, though, because there is this issue of prior restraint of free speech. I think that's one of the main arguments that the defendants are relying upon. They are alleging that what we're trying do is enjoin prior restraint of free speech, that this is somehow protected constitutional speech. And it is not, Your Honor. The speech that is at issue, which is the sex tape, is not constitutional protected speech.

There is a case that we came across when we were doing some research on the opposition. We came across it yesterday. It happens to be from the California Supreme Court, but it cites heavily to the United States Supreme Court. That case is called Aguilar vs. Avis Rent-A-Car System, Inc. The citation is 21 Cal.4th 121. It's from 1999.

And the -- I'm not going to get into the 1facts too much, but there was an employee at Avis Rent-A-Car who was being subjected to racial epithet. And the employee -- his co-worker who was subjecting him to these, wouldn't stop and Avis wouldn't put a stop to it. So he filed a lawsuit and he sought an injunction to stop this co-worker from using racial epithets towards him.

The argument from the defense was that this was an attempt at prior restraint of free speech. It went all the way up to the California Supreme Court. The California Supreme Court enjoined this conduct and said it's not a prior restraint because it's not constitutionally protected. And the Court even went into a whole list of the types of conduct and types of speech that's not constitutionally protected. They had quite a list in the case, and there is additional case law, which even adds to that list.

Unlawful conduct is not constitutionally protected. The Aguilar case has soliciting a bribe. That's a crime. You can't protect speech that's like that. Perjury is another example. Making a terrorist threat is another example. In other cases one example is child pornography. That's not constitutionally protected. You can 1enjoin that in heartbeat. No one is going to say you can't.

Well, that's somewhat similar to what we have here, which is a violation of the video voyeurism law in Florida where somebody is taped without their knowledge, without their permission, in a state of undress. You can't tape them. It's illegal. And you can't post it. That's illegal. Illegal conduct. It's criminally illegal, not just civilly illegal. You can enjoin conduct that's like that. It doesn't get constitutional protection.

And the Supreme Court of California has a great quote here. It says, "The State may penalize threats, even those consisting of pure speech. The goal of the First Amendment is to protect expression that engages in some fashion in public dialogue, that is communication in which the participants seek to persuade or are persuaded, communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one's beliefs."

The Court even goes into slander and intentional infliction of emotional distress. And it says to -- as to all of this whole list of 1types of speech, "Types of speech that produce special harms distinct from their communicative aspect, such practices are entitled to no constitutional protection."

And the Court concludes, "The foregoing high court decision" -- it's referring to several U.S. Supreme Court decisions -- "recognize that once a Court has found the specific pattern of conduct is unlawful, an injunction order prohibiting the repetition, perpetuation, or continuation of that practice is not a prohibited prior restraint of speech."

And here, Your Honor, we have a situation, as you are aware, of one other area that's not protected is copyright and trademark infringements. Courts are all the time enjoining copyright infringements and trademark infringements, particularly in California where I'm from, where somebody will post either a TV show or a movie or excerpts from it and the owner of that will say, wait a second, you have to pay for that. You have to get a license from me. I get money when I put that on TV or I put that on the internet. Courts enjoin that all the time. Well, that's beyond prior restraint. That's not 1constitutionally protected.

There is also the case that we cited, Michaels -- the first Michaels case, Bret Michaels, where it involved a celebrity sex tape. The Court enjoined it. The Court said just because you're a celebrity doesn't mean you gave up your rights of privacy. In some ways you do, but not in all ways, not when you're behind closed doors in a bedroom or another private place.

And in preparing for this, Your Honor, I went on the internet, and I just looked up video voyeurism in Florida just to see what was -- what's the whole point of the video voyeurism law. There were some articles about some of the recent prosecutions, and one was a fellow named Michael Drey, D-R-E-Y. Last year the article came out in the Orlando Sentinel in September of last year.

This was fellow who was an employee at a Target store. He set up allegedly -- I guess I have to say allegedly. He set up two cameras in the changing rooms, filmed what was going on in the changing rooms.

And one of the victims, who was 26 years 1old, was mortified that she had changed into a bikini, had no idea that she was being filmed. And this individual, Michael Drey, was prosecuted. He was facing a five-year prison sentence, according to the article. I don't know whatever happened to it.

But it's -- it's -- the courts look at the balancing of the public interests. And the balancing of the public interests on the one hand is the right to be -- have privacy in a private place. And everybody has that right. Everybody has that expectation, and they should if we're going to be a civilized society. You just can't burst in anywhere or surreptitiously video someone when you don't have their permission. It's a very substantial interest.

And the Michaels case talks about the substantial interest that people have to privacy in their private homes and private places.

On the other hand, the counter balance is the right of people to watch videos that they are not supposed to watch. Well, there is no right. There is no such right to watch a video of somebody in a private bedroom naked or having sex or in a changing stall when they are putting on a 1bikini. There is no such right.

Now, the Gawker defendants try to tie in a newsworthiness to this. They say, well, he's a celebrity, so therefore, we can talk about it. Well, the Michaels decision says, no, you can't. You can't -- you can't just tie in a newsworthy aspect to something that is a violation of someone's rights.

Now, the interesting thing is that in Michaels, it wasn't a violation of the criminal statute of video voyeurism. First it was in California, and here we're in Florida where there is such a statute. And, second, Pamela Anderson and Bret Michaels created the film on their own. The violation was that they created it for their personal usage and not for public usage.

Here we have a different situation where Mr. Bollea was filmed without his knowledge and without his permission in a private place. That was a violation. And it is equally a violation to post that. So it's even more of a violation of his privacy rights and of the law here in Florida.

Also, Florida has a two-person -- a statute that requires two people to consent to the taping 1and recording of someone. That was violated, as well.

There is a famous case that involves a celebrity outside of all of these cases that we've cited. That's of Erin Andrews. She was an ESPN reporter who was in a hotel room. A person rented the hotel room next to her and somehow had peep holes into her room, and he videoed her in her hotel room.

She was mortified, and she suffered extreme emotional distress. It was a huge news story. No one doubts that that was a big news story, that there was a newsworthy aspect to that incident.

But that doesn't mean you get -- a news organization gets to post video of Erin Andrews naked in a hotel room. It's not necessary to post that to tell the news story. You can still tell the five Ws of the story, the who, what, where, when, why, how, without posting the actual content.

And here, Gawker defendants stepped over the line. No one is disputing that they had a right to write a legitimate news story. Even to have a picture of Terry Bollea next to the news story 1saying, this is the guy that we're talking about. You know him as Hulk Hogan.

And then talking about he had an extramarital affair. He was in a bedroom. It was not his bedroom. It was not his wife, et cetera. A tape was made allegedly. Someone is trying to shop that tape. You can say all of that in words. You don't have to post the content.

Can you imagine a world where every time someone was surreptitiously videoed, and if there was some news aspect of it, they got to post the content? Erin Andrews or the situation with Michael Drey at the Target store? Or news flash, ladies and gentlemen, there is a Peeping Tom in your neighborhood. This is how he operates. Here is some video that he took. That's crossing the line.

They crossed the line. We're asking for an injunction to stop that. The Courts say you're entitled to an injunction, a mandatory injunction. Yes, they posted it up. We're entitled to an injunction to take it down.

The case that I was telling you about earlier, Aguilar, the Supreme Court of California 1said you're entitled to a mandatory injunction against this co-worker who was using racial epithets because his speech is not constitutionally protected and you can stop him.

I think you need to look no further than the Gawker story itself where they admit this isn't about telling the news. They say it's not safe for work. They say it reduces us all to voyeurs and deviants. They say you're not supposed to watch it.

Well, they are not describing the front page of the New York Times. The New York Times is something -- is not something you're not supposed to watch. It's not something that reduces you to a voyeur or a deviant if you look at it. It's perfectly safe for work.

If it was a legitimate news content -- I'm talking about the sex tape. If that was legitimate, they wouldn't be saying you're not supposed to watch it.

I think it's also telling that no other news organizations in the world have this sex tape up. There was one other instance where following their lead, they posted the same content. And in a Cease & Desist letter, it was taken down 1immediately.

No other news organization has posted this up. Hundreds, if not thousands, have written about the story of the Hulk Hogan sex tape. It became big news, but nobody has posted the contents.

I reserve for further. Thank you, Your Honor.

THE COURT: All right. Mr. Thomas.

MR. THOMAS: Your Honor, can I approach?

THE COURT: Yes.

MR. THOMAS: Your Honor, there's a chart we would like to talk to you about. Your Honor, I would like for you to think for a second about the reverse of what happened in this case. Let's assume Mr. Bollea comes to you firsthand and he presents these arguments. Your Honor spends a consider amount of judicial labor on those arguments.

And this is the same thing, Your Honor. Mr. Hogan chose the court of first resort. Didn't come to this court first. He came to the United States District Court in Tampa, Florida and filed this claim. He chose it. We didn't.

He files a Motion for Temporary Restraining Order and Preliminary Injunction. The Court, seven days later, denies the temporary restraining order, but says you're going to have your day in court. You're going to have a hearing. You take as much time as you want.

I argued. Ms. Ramirez's partner, Mr. Turkel, argued. We were there for an hour and a half. There is a lengthy transcript of that hearing in Tampa, Your Honor.

The Judge -- the same day we had that hearing, they file an Amended Complaint that adds a copyright claim. Copyright, as Mr. Harder says, is exactly right. Copyright gives you an entitlement to an injunction if you satisfy the other criteria. So Judge Whittemore after that hearing, three weeks, issues -- denies the preliminary injunction. Lengthy order. We have a copy of it right here for Your Honor.

THE COURT: I have a copy. Thank you. I have two copies, in fact, that were attached to -- I believe it was Ms. Fugate's declaration, and there was a copy of the Order dated November 14, 2012. There is also an Order that is dated December 21, 2012.

MR. THOMAS: Exactly, Your Honor. That first Order is the Order -- the key Order about the preliminary injunction. The Court spends a considerable amount of time analyzing the four criteria, talking about prior restraint, makes the determination that it is a prior restraint to enjoin this, looks at the four criteria that are necessary for an injunction and makes a ruling.

But then the Court goes on -- well, the next day, Your Honor, the 15th, they appeal to the 11th Circuit Court of Appeals. They are on their way to the 11th Circuit to the get relief there.

And they come back to Judge Whittemore and they say, "You need to stay this while we consider the 11th Circuit Order." The Judge looks at that and he denies it.

They file a motion, the same sort of motion, in the 11th Circuit, and the 11th Circuit never gets there. The Court then -- they file a next -- a second Motion for Preliminary Injunction, Your Honor, on the copyright claim.

So they've had three bites at the apple; 1temporary restraining order, preliminary injunction on the first claim, and preliminary injunction on the second claim. So to say that the Court in Tampa did not devote sufficient labor to this matter, Your Honor, that's what Judges like Your Honor do. You consider the matter and you rule. Here, Judge Whittemore did exactly that. He made a ruling.

At some point they decide to abandon that claim. They dismiss in trial court exactly the same claims Your Honor is presented with today; intrusion, private facts, video voyeurism, all the same claims.

And I would ask Mr. Harder to tell you on rebuttal what's changed since then. You know, you can have a second injunction if the facts and circumstances have changed.

Your Honor, the collateral estoppel rule is clear. You can't form shop. That's exactly what's happening here. Considerable judicial labor there followed by decisions on the merits.

Your Honor, if we look at the -- what the -- what the standard is adopted by Florida and Federal courts, if it's a Federal decision, the Federal rules apply, will estoppel apply? 1Florida courts agree with that.

The criteria are the issue the stake is identical to the one involved in the prior proceeding. The issues are identical, Your Honor. The Complaint doesn't really change between State court and Federal court.

The issue was actually litigated in a prior proceeding. Not only litigated, but we have a decision. We have adjudication on the merits.

The determination of the issue in prior litigation had a critical and necessary part of the judgment in the first action. That's exactly what happened here. Judge Whittemore looked at it and made a decision.

The party against whom the collateral estoppel is asserted had a full and fair opportunity for a hearing. Your Honor, fully briefed, fully argued. A decision made by Judge Whittemore.

Your Honor, if we look at the merits, and we really can look to what Judge Whittemore said about prior restraints, since 1789, we've had a non-English interpretation of the way the speech works. If I said something in England, I would be stopped and not allowed to proceed and then 1we'd have a trial.

In the United States, it's just the reverse. It's publish first, punish later. That's the rule about speech. We're not saying that Mr. Bollea may at some time in a trial be able to recover damages for any loss that he suffered. And we're not saying that at a subsequent point Your Honor can't enjoin it, but not at this status of the proceedings, Your Honor.

Since 1789, we've had a Constitution that honors speech. And I'm the last person here, Your Honor, to tell you that this is the speech of the highest quality or tenor, but the cases seem to say Your Honor can't make that judgment. You can't --

THE COURT: Let me ask you this. I'm sorry for interrupting, but directly on that point. This is the part that was irritating to me in the lawyers' pleading, where they are describing comments that are made allegedly during this tape.

So is that the speech that you are trying to protect? The speech that was made during the scope of this videotape between these two consenting adults having sex in a private setting 1with allegedly no notice to the plaintiff? I'm not sure what speech you're trying to protect.

MR. THOMAS: Your Honor, I'm trying to protect multiple parts of speech. The first part is the printed version of the story. This is not a sex tape by itself, Your Honor. There is a printed version like in the Michaels case and a sex tape that goes with it. It's not a sex tape alone. Yes, Your Honor, I'm trying to protect that speech. I'm also trying to protect the speech that's there.

THE COURT: How does that butt up against the Florida Constitution, Article I, Section 23, a right to privacy?

MR. THOMAS: Yes, Your Honor. I understand that. But I also think, Your Honor, when we think of the history of the First Amendment, we think of the Pentagon papers, maybe because I'm a First Amendment lawyer.

There a top secret document that was clearly stolen that could have injured men in war in Vietnam was considered by the United States Supreme Court. And they said we're not going to stop its publication. The analogy perhaps is not appropriate.

THE COURT: It doesn't even have any -- it's apples and oranges, worse than that actually.

MR. THOMAS: Well, Your Honor, I don't think I'm out of order when I say speech is speech. Your Honor is not permitted to make an editorial judgment about which speech is permissible and which speech is not permissible.

THE COURT: I'm only talking about the tape.

MR. THOMAS: Your Honor, I'm talking about the tape, too. Your Honor, I don't know if you've taken the time to look at the tape.

THE COURT: No. I'm not going to look at the tape. I don't think at this point in time I need to look at the tape.

But I will tell you that I had case not too recently that had to do with a man here in town that was allegedly hiring bikini-clad women to go beat up homeless men, and they were recording 1these sessions, and the men allegedly would receive $50 at the end of 12 minutes.

Well, it was a crime in beating up these disabled people, so the man went to jail. The case ultimately resolved, but there were injunctions. He couldn't be posting those. He was selling those videotapes. He couldn't be selling those videotapes of this crime that was occurring in his garage. And I liken that similar to something that's here.

MR. THOMAS: Your Honor, the Michaels case that's talked about by Plaintiff, a sex tape created and copyrighted, and then Michaels was about the sale of that videotape. The Michaels case comes along, it's a hard copy, which is a news television program, has a section of the same videotape and text and discussion of the videotape.

And the Court, Federal Court, contrary to Michaels 1, says that's permissible when you -- when you put speech together with writing, as in the hard copy case and in this case. Your Honor, there is a lengthy article about this that appears in Gawker.

Your Honor, the tape, as I understand it, is 101 seconds long --

THE COURT: That's what your motion says. MR. THOMAS: -- out of 30 minutes. And in that are about nine seconds of something that could be deemed sexual conduct. Your Honor, I think as Judge Whittemore said, that sort of speech in our Constitution is entitled protection.

Mr. Bollea says he wants $100 million. In our system, that's what you do. You litigate the merits. And a jury in this courtroom can make that, and that could remedy the wrong here, Your Honor. The Constitution and prior restraint simply does not permit Your Honor to do that.

And here, given the fact that another Federal Judge -- or a Federal Judge has looked at exactly the same issues and made a determination, Your Honor, I think -- does everybody get a second bite at the apple? I don't think so. I think Your Honor would be -- what's the purpose of us having a hearing here today if tomorrow we could go into Federal court and raise the same issues?

THE COURT: Well, you know, this same case was filed here on October 15, 2012. So it was filed.

MR. THOMAS: Not with these defendants, Your Honor.

THE COURT: I don't know. There was a case that was filed here with this same case number on October 15, 2012. I'm not sure who were the parties.

MR. THOMAS: Not with these parties, Your Honor, not with the Gawker defendants. The Gawker defendants in Federal court, adjudicated in Federal court. After they dismissed the case in Federal court, Your Honor, they amended the Complaint, I think, in December 25.

Your Honor, the principals of comity where you give deference to other judicial labors I think is critical here, Your Honor. The waste of time and effort by Judge Whittemore would be wasted. So do we all get two shots at the apple?

Your Honor, I think when you consider the elements, the four elements required for injunctive relief, is this newsworthy? Hulk Hogan, Your Honor, I think we've mentioned, has written books about his exploits. He is a major, major person. When he does things, he writes about it. When he divorced his wife, he wrote about it. When he did other things, he wrote about it.

And now when something is intensely embarrassing, does he get to shut the spicket on news about that matter, that he has an affair with his best friend's wife in the presence of the same person? Your Honor, I think if he opens the spicket in circumstances like this, he can't close it as easily.

Your Honor, we think you should deny the Motion for Preliminary Injunction.

THE COURT: All right. Thank you. Response, Mr. Harder?

MR. HARDER: Thank you, Your Honor. Just briefly. Judge, as I said before, Judge Whittemore's ruling was not on the merits. And Mr. Thomas says that you can't go into one court and ask for injunction and go to another court and ask for injunction. That's not true.

I've cited to you cases where someone did go into one court, was denied an injunction in State 1court, went to Federal court, and the Court did not deny it based on collateral estoppel. The Court in the second case did a full hearing. And that's all we're asking for here, Your Honor, is to -- just to be heard.

What Judge Whittemore did is not a waste in any sense because he wrote up an Order. And that Order has case citations and an explanation as to how he viewed the case and how he viewed the issues.

That doesn't mean that you have to be a rubber stamp, Your Honor. You, as you are fully aware, I'm sure, can make your own decisions, and we assume that you will do so.

Collateral estoppel, however, does not apply here. You are not forced to adopt Judge Whittemore's ruling. You can rule how you see fit.

It's true that we can seek damages, and we are seeking damages, but that's not what an injunction is about. An injunction is about putting a stop to wrongful, illegal criminal conduct that is taking place today. A criminal conduct that we're here about is occurring right now at Gawker.com, this web page, where they will 1not take this video down.

Just to clarify, it's about the video, and it's about the quotations from that video that are in print. If you're not supposed to ever tape someone behind closed doors, you're also -- you shouldn't be quoting from what people are saying or the descriptions of what so and so looked like and that so and so's genitals were as X, Y, Z, and I'm going to stop there. That's what is on the website. They go into great length about describing things.

From our viewpoint, the description should be taken down, the quotation should be taken down, and definitely the video should be taken down.

They talk about 101 seconds isn't very much because the video is 30 minutes long supposedly, although no one has ever seen the full 30 minutes.

Let's say their encounter lasted three days. Let's say it was a long weekend. Does that mean you can have 30 minutes because the percentage is small?

101 seconds is a great deal of time when you're looking at the types of things that we're 1looking at. There was oral sex. There's intercourse. There's all kinds of -- there's changing of positions. There's climaxing, excuse me, Your Honor. There's all kind of things within that 101 seconds.

It's a highlight reel is what it is. They make it sound like it's minor portions of the video. It's a highlight reel. It's ladies and gentlemen, this is all you ever need to see. We've cut it all down to the best stuff.

They're making money off of this. That's why they are doing it. The owner of their company -- we've provided the blog entries that he wrote. He brags. He brags about how they made 100 million views because people are going to watch the sex tape. Well, now it's up to 4 million because so much time has elapsed. It's still about 5,000 people going every single week to take a look at this.

My clients can't move past this. That's why they've asked me to continue this endeavor because they can't move past this with their lives as long as that tape is still showing Mr. Bollea having sex with somebody and people are still going to see it, and they comment about, 1oh, I just saw it, on Twitter and in interviews and various other places. Once this thing is down, they will begin the process of moving past it, but they can't do that.

And they've provided affidavits, Your Honor, and you can read them. I don't want to put words in their mouths, but I think that they are articulate in how they describe what they're having to go through and still having to go through. That's why we're seeking the injunction. If you have any questions, Your Honor, I'm happy to address them.

THE COURT: All right. Thank you.

MR. THOMAS: Your Honor, briefly can I respond?

THE COURT: Well, typically you have the movant, the response, and the rebuttal, and that's it. Is there something that you feel really pressing that's also not in your papers?

MR. THOMAS: Your Honor, just the video voyeurism claim. It's not a private cause of action in Florida. It's not permissible to bring it as a private cause of action. In the Barnicki (phonetic) case from the United States Supreme Court --

1THE COURT: That was in his initial part.

MR. THOMAS: Yes, Your Honor.

THE COURT: Thank you. All right. The Court is going to grant the temporary injunction, finding that plaintiff will suffer irreparable harm. There is no adequate remedy of law, the likelihood of success on the merits, and that public interest will definitely be served by granting this public and temporary injunction.

I'm ordering that the Gawker.com remove the sex tape and all portions and content therein from their websites, including Gawker.com. Ordering to remove the written narrative describing the private sexual encounter, including the quotations from the private sexual encounter from websites and including Gawker.com.

I would like to comment that -- perhaps comments on the news aspect of it, I'm not addressing the news aspect of it or the book that Mr. Bollea wrote or any of those other aspects. Simply the language that describes what's on the tape, the tape itself, and the exact quotations that are entailed during the course of the tape.

I have more to go. Did you have a question?

MR. THOMAS: Your Honor, I'm sorry. I'm 1just trying to be professional and stand when I'm talking, but I'll wait until you finish.

THE COURT: I didn't know if you had a specific point on that particular issue.

MR. THOMAS: No, Your Honor.

THE COURT: Okay. Also enjoined from posting, publishing, exhibiting, or broadcasting the full length video recording, any portions, clips, still images, audio, or transcripts of the video recording.

And ordering the turn over to Mr. Bollea's attorneys all copies of the full length video recording, any portions of any clips, still images, audio, or transcripts of that video recording; and that turn over is to be accomplished within the next 10 business days. No bond will be required.

And so, Mr. Thomas, did you want a clarification?

MR. THOMAS: Your Honor, they say that we've made millions off of this, but you're not going to require a bond?

THE COURT: I think that it was really -- in the paper there's millions that have been watching it. I don't know how much money has been made on it.

MR. THOMAS: But, Your Honor, you have to protect us if the injunction is improperly entered so that there is bond money there. I mean, a bond -- if we're making millions off this and you take it down, shouldn't we have some monetary bond?

MR. HARDER: Your Honor, we never said they made millions of dollars. The quote is from Nick Denton saying a million people have watched -- have gone to Gawker.com.

THE COURT: Yeah, now 4.9 some million people.

MR. THOMAS: So, Your Honor, if you can monetize it at . a piece, that's still a significant amount of money.

THE COURT: I'm not going to require a bond. Did you have anything else?

MR. THOMAS: Yes, Your Honor. Can we have a stay pending our time to go to the 2nd DCA to seek appellate review of your decision?

THE COURT: Do you know of any authority that requires me to stay it?

MR. THOMAS: No, Your Honor.

THE COURT: Okay. No. Denied. Stay is denied.

So, Mr. Harder, would you please prepare that Order for me and send it to me. Do you know how long it will take you to prepare that?

MR. HARDER: I would expect that we would get that in to you hopefully tomorrow or the next day, as soon as we possibly can.

THE COURT: Okay. Thank you. Anything else for today?

MR. THOMAS: Thank you, Your Honor.

THE COURT: All right. Thank you very much.

(Thereupon, a discussion was held off the record.)

THE COURT: Additionally on the record, Mr. Keith Thomas had called our office, was not able to be here today. He represents Ms. Clem and has no objection to the entry of an injunction. Thank you.

(Thereupon, the proceedings were concluded.)

CERTIFICATE OF REPORTER

STATE OF FLORIDA

COUNTY OF PASCO

I, Stacy D. Miller, Court Reporter, certify that I was authorized to and did stenographically report the foregoing proceedings and that the transcript is a true record thereof.

I further certify that I am not a relative, employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorneys or counsel connected with the action, nor am I financially interested in the action.

Terry Bollea sought to enjoin Gawker Media, LLC, from publishing and otherwise distributing the written report about his extramarital affair that includes video excerpts from the sexual encounter. The circuit court granted Mr. Bollea's motion for temporary injunction, though it did not articulate the reasons for doing so. On appeal, Gawker Media challenges the circuit court's order, asserting that Mr. Bollea is collaterally estopped from seeking the same relief previously sought and decisively denied in federal court, and should the doctrine of collateral estoppel be inapplicable, that such relief is an unconstitutional prior restraint. Because the temporary injunction is an unconstitutional prior restraint under the First Amendment, we reverse.

I. Background

In 2006, Mr. Bollea engaged in extramarital sexual relations with a woman in her home. Allegedly without Mr. Bollea's consent or knowledge, the sexual encounter was videotaped. On or about October 4, 2012, Gawker Media posted a written report about the extramarital affair on its website, including excerpts of the videotaped sexual encounter ("Sex Tape"). Mr. Bollea maintains that he never consented to the Sex Tape's release or publication. Gawker Media maintains that it was not responsible for creating the Sex Tape and that it received a copy of the Sex Tape from an anonymous source for no compensation.

On October 15, 2012, Mr. Bollea initiated an action in federal court by filing a multicount complaint against Gawker Media and others, asserting claims for invasion of privacy, publication of private facts, violation of the right of publicity, and infliction of emotional distress. See Bollea v. Gawker Media, LLC, No. 8:12-cv-02348-T-27TBM, 2012 WL 5509624, at *2 (M.D. Fla. Nov. 14, 2012) (Bollea I). Additionally, on October 16, 2012, Mr. Bollea filed a motion for preliminary injunction, seeking to enjoin the named defendants from publishing any portion of or any content from the Sex Tape. Following a hearing, the federal court issued an order on November 14, 2012, denying the motion for preliminary injunction. See id. at *3-5. The court found that the requested preliminary injunction would be an unconstitutional prior restraint under the First Amendment and that notwithstanding the First Amendment issue, Mr. Bollea otherwise failed to demonstrate that he was entitled to a preliminary injunction under the applicable injunction standard. Id. at *3-4.

On December 28, 2012, Mr. Bollea voluntarily dismissed the federal action. That same day, Mr. Bollea filed an amended complaint in state circuit court, asserting essentially the same claims that he asserted in federal court. Thereafter and as he did in federal court, Mr. Bollea filed a motion for temporary injunction seeking to enjoin Gawker Media and others not participating in this appeal [1] from publishing and otherwise distributing the video excerpts from the sexual encounter and complementary written report. Following a hearing, the circuit court issued an order on April 25, 2012, granting the motion for temporary injunction. The court did not make any findings at the hearing or in its written order to support its decision. [2] On May 15, 2013, this court stayed the order granting the motion for temporary injunction pending the resolution of this appeal.

II. Applicable Standards

"The primary purpose of a temporary injunction is to preserve the status quo while the merits of the underlying dispute are litigated." Manatee Cnty. v. 1187 Upper James of Fla., LLC, 104 So. 3d 1118, 1121 (Fla. 2d DCA 2012). In the context of the media, "the status quo . . . is to publish news promptly that editors decide to publish. A restraining order disturbs the status quo and impinges on the exercise of editorial discretion." In re Providence Journal Co., 820 F.2d 1342, 1351 (1st Cir. 1986), modified on other grounds on reh'g by 820 F.2d 1354 (1st Cir.), cert. dismissed, United States v. Providence Journal Co., 485 U.S. 693 (1988). A temporary injunction is an "extraordinary remedy" that should be granted "sparingly and only after the moving party has alleged and proved facts entitling [him] to relief." Liberty Fin. Mortg. Corp. v. Clampitt, 667 So. 2d 880, 881 (Fla. 2d DCA 1996) (citations omitted).

A temporary injunction aimed at speech, as it is here, "is a classic example of prior restraint on speech triggering First Amendment concerns," Vrasic v. Leibel, 106 So. 3d 485, 486 (Fla. 4th DCA 2013), and as such, it is prohibited in all but the most exceptional cases, Near v. Minn. ex rel. Olson, 283 U.S. 697, 716 (1931). Since "prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights," the moving party bears the "heavy burden" of establishing that there are no less extreme measures available to "mitigate the effects of the unrestrained . . . public[ation]" and that the restraint will indeed effectively accomplish its purpose. Neb. Press Ass'n v. Stuart, 427 U.S. 539, 558-59, 562 (1976). Furthermore, "[w]here . . . a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment." Neb. Press Ass'n v. Stuart, 423 U.S. 1327, 1329 (Blackmun, Circuit Justice, 1975). [3]

We generally review orders granting temporary injunctions for an abuse of discretion. Forrest v. Citi Residential Lending, Inc., 73 So. 3d 269, 275 (Fla. 2d DCA 2011). However, "[w]e apply a de novo standard of review to the determination of whether a temporary injunction constitutes an unconstitutional prior restraint on free speech." Id. (citation omitted). And though an injunction order generally comes to this court clothed with a presumption of correctness, orders restraining "protected speech must be considered presumptively invalid" and will only be permitted if there are no less restrictive means available. Romero v. Erik G. Abrahamson, P.A., 113 So. 3d 870, 872 (Fla. 2d DCA 2012); accord N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971).

III. First Amendment

It is not clear from the hearing transcript, and certainly not from the order, why the circuit court granted the motion for temporary injunction. Based upon the few interjections the court made during the hearing, it appears that the court believed Mr. Bollea's right to privacy was insurmountable and that publishing the content at issue was otherwise impermissible because it was founded upon illegal actions.

Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public. The arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.

Id. at 1216 (citations omitted) (internal quotation marks omitted).

Mr. Bollea, better known by his ring name Hulk Hogan, enjoyed the spotlight as a professional wrestler, and he and his family were depicted in a reality television show detailing their personal lives. Mr. Bollea openly discussed an affair he had while married to Linda Bollea in his published autobiography [4] and otherwise discussed his family, marriage, and sex life through various media outlets. Further, prior to the publication at issue in this appeal, there were numerous reports by various media outlets regarding the existence and dissemination of the Sex Tape, some including still shots therefrom. Despite Mr. Bollea's public persona, we do not suggest that every aspect of his private life is a subject of public concern. See generally Post-Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So. 2d 608, 612 (Fla. 5th DCA 2007) (noting that appellant's status as a public figure does not mean that every aspect of his private life is of public concern but nonetheless holding that enjoining the broadcaster from publicly airing appellant's personal records and those of his family operated as an unconstitutional prior restraint under the First Amendment). However, the mere fact that the publication contains arguably inappropriate and otherwise sexually explicit content does not remove it from the realm of legitimate public interest. See Snyder, 131 S. Ct. at 1217; see also Fla. Star v. B.J.F., 491 U.S. 524, 525 (1989) (holding that a news article about a rape was a matter of public concern and that the newspaper was not liable for the publication of the victim's identity obtained from a police report released by law enforcement in violation of a Florida statute); Cape Publ'ns, Inc. v. Hitchner, 549 So. 2d 1374, 1377 (Fla. 1989) (holding that confidential information regarding a child abuse trial was a matter of legitimate public concern and that thus the newspaper's publication of such did not violate privacy interests). It is clear that as a result of the public controversy surrounding the affair and the Sex Tape, exacerbated in part by Mr. Bollea himself, [5] the report and the related video excerpts address matters of public concern. See Bartnicki v. Vopper, 532 U.S. 514, 534 (2001) ("[P]rivacy concerns give way when balanced against the interest in publishing matters of public importance. . . . One of the costs associated with participation in public affairs is an attendant loss of privacy."); Michaels v. Internet Entm't Grp., Inc., No. CV 98-0583 DDP (CWx), 1998 WL 882848, at *10 (C.D. Cal. Sept. 11, 1998) (Michaels II) ("[T]he private facts depicted in the [publication] ha[d] a substantial nexus to a matter of legitimate public interest," namely, a dispute over the dissemination of the sex tape, and the depiction of the sexual relations was "clearly part of the story."); see also Jones v. Turner, No. 94 Civ. 8603 (PKL), 1995 WL 106111, at *21 (S.D.N.Y. Feb. 7, 1995) (holding that the preliminary injunction was unjustifiable where nude pictures were related to the accompanying article and the article itself was a matter of public concern). But see City of San Diego, Cal. v. Roe, 543 U.S. 77, 84 (2004) (holding that the sexually explicit acts of the government employee, depicted in a video, did not address a matter of public concern where the acts "did nothing to inform the public about any aspect of the [employing agency's] functioning or operation"); Toffoloni v. LFP Publ'g Grp., LLC, 572 F.3d 1201, 1213 (11th Cir. 2009) (holding that the publication of nude photographs of a female professional wrestler taken twenty years prior was not protected speech because their publication was not related to the content of the reporting, namely, her murder).

In support of his contention that the report and video excerpts do not qualify as matters of public concern, Mr. Bollea relies on Michaels v. Internet Entertainment Group, Inc., 5 F. Supp. 2d 823 (C.D. Cal. 1998) (Michaels I), in which the court enjoined the commercial distribution of an entire sex tape that infringed the plaintiffs' copyrights. However, the court in Michaels I found the use of the sex tape to be purely commercial in nature. Specifically, the copyrighted tape was sold via the internet to paying subscribers, and the internet company displayed short segments of the tape as a means of advertisement to increase the number of subscriptions. Id. at 835. In contrast, Gawker Media has not attempted to sell the Sex Tape or any of the material creating the instant controversy, for that matter. [6] Rather, Gawker Media reported on Mr. Bollea's extramarital affair and complementary thereto posted excerpts from the video.

The court in Michaels I pointed out that although "[t]he plaintiffs are entitled to an injunction against uses of their names or likenesses to sell the [sex tape,] [t]he injunction may not reach the use of their names or likenesses to report or comment on matters of public interest." Id. at 838. In accord with this conclusion, the court held in the companion case that the publication of a news report and brief excerpts of the sex tape was not an invasion of privacy and was protected speech. Michaels II, 1998 WL 882848, at *7, *10 (distinguishing the dissemination of an entire sex tape with the use of excerpts from the tape); see also Bollea v. Gawker Media, LLC, 913 F. Supp. 2d 1325, 1331 n.6 (M.D. Fla. 2012) (Bollea II) ("[Gawker Media] did not simply post the entire [Sex Tape]—or substantial portions thereof, but rather posted a carefully edited excerpt consisting of less than two minutes of the thirty[-]minute video of which less than ten seconds depicted explicit sexual activity."). Here, the written report and video excerpts are linked to a matter of public concern—Mr. Bollea's extramarital affair and the video evidence of such—as there was ongoing public discussion about the affair and the Sex Tape, including by Mr. Bollea himself. Therefore, Mr. Bollea failed to meet the heavy burden to overcome the presumption that the temporary injunction is invalid as an unconstitutional prior restraint under the First Amendment. As such, it was within Gawker Media's editorial discretion to publish the written report and video excerpts. See Providence Journal, 820 F.2d at 1351; see also Doe v. Sarasota-Bradenton Fla. Television Co., 436 So. 2d 328, 331 (Fla. 2d DCA 1983) (noting that it is the primary function of the publisher to determine what is newsworthy and that the court should generally not substitute its judgment for that of the publisher).

B. Unlawful Interception

It appears that the circuit court may have been convinced by Mr. Bollea's argument that the speech at issue is not entitled to First Amendment protection because the Sex Tape was created in violation of the law. [7] However, there is no dispute that Gawker Media was not responsible for the creation of the Sex Tape. Nor has Mr. Bollea alleged that Gawker Media otherwise obtained it unlawfully. The Supreme Court in Bartnicki held that if a publisher lawfully obtains the information in question, the speech is protected by the First Amendment provided it is a matter of public concern, even if the source recorded it unlawfully. Bartnicki, 532 U.S. at 535; see also CBS Inc. v. Davis, 510 U.S. 1315, 1318 (Blackmun, Circuit Justice, 1994) ("Nor is the prior restraint doctrine inapplicable because the videotape was obtained through the 'calculated misdeeds' of CBS."); N.Y. Times Co. v. United States, 403 U.S. 713 (1971) (holding that notwithstanding the fact that a third party had stolen the information, the press had a constitutional right to publish the Pentagon Papers because they were of public concern). As the speech in question here is indeed a matter of legitimate public concern, the holding in Bartnicki applies. [8] As such, the temporary injunction acts as an unconstitutional prior restraint on Gawker Media's protected speech.

IV. Collateral Estoppel

Gawker Media asserts that the circuit court's order granting Mr. Bollea's motion for temporary injunction is barred by the doctrine of collateral estoppel because the same issue was decisively adjudicated in the Middle District of Florida on Mr. Bollea's motion for preliminary injunction. Collateral estoppel, referred to as issue preclusion in the federal courts, is a judicial doctrine that prevents relitigation of an issue that has been previously adjudicated. Sea Quest Int'l, Inc. v. Trident Shipworks, Inc., 958 So. 2d 1115, 1120 (Fla. 2d DCA 2007). Since the pertinent prior decision was issued by the federal court, the federal rules of preclusion apply. See id. at 1119. Thus, this court must follow the "analysis the federal courts would apply with respect to issue preclusion," the effect of which is to "assume hypothetically" that Mr. Bollea refiled his motion in federal court. See Amador v. Fla. Bd. of Regents ex rel. Fla. Int'l Univ., 830 So. 2d 120, 122 (Fla. 3d DCA 2002).

Whether or not collateral estoppel applies depends on whether the federal court's order denying Mr. Bollea's motion for a preliminary injunction constitutes judicial finality. See Christo v. Padgett, 223 F.3d 1324, 1339 (11th Cir. 2000) ("It is widely recognized that the finality requirement is less stringent for issue preclusion than for claim preclusion."); see also Miller Brewing Co. v. Jos. Schlitz Brewing Co., 605 F.2d 990, 995 (7th Cir. 1979) (stating that an interlocutory decision "will be given preclusive effect if it is necessarily based upon a determination that constitutes an insuperable obstacle to the plaintiff's success on the merits"). " '[F]or purposes of issue preclusion . . . , "final judgment" includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect.' " Christo, 223 F.3d at 1339 n.47 (quoting Restatement (Second) Judgments § 13 (1980)). Whether the resolution in the first proceeding is sufficiently firm to merit preclusive effect turns on a variety of factors:

"To claim the benefit of collateral estoppel the party relying on the doctrine must show that: (1) the issue at stake is identical to the one involved in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the determination of the issue in the prior litigation must have been 'a critical and necessary part' of the judgment in the first action; and (4) the party against whom collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue in the prior proceeding."

Id. (quoting Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir. 1998)). Gawker Media contends that all four prongs have been satisfied and that the federal court's prior ruling is a final judgment on the merits of the issues presented by the preliminary injunction itself. [9]

This court has not addressed this exact collateral estoppel issue, nor has the Eleventh Circuit Court of Appeals. [10] And though Gawker Media's arguments are persuasive, we are not convinced that a ruling at such a provisional stage in the proceedings should have preclusive effect. The United States Court of Appeals for the Federal Circuit held "that decisions granting or denying preliminary injunctions may be sufficiently final to be given preclusive effect," but the court further held that in order for decisions to have such effect, they must be "based upon a determination that constitutes an 'insuperable obstacle' to the plaintiff's success on the merits." Abbott Labs. v. Andrx Pharm., Inc., 473 F.3d 1196, 1205 (Fed. Cir. 2007) (citations omitted). Said "insuperable obstacle" only exists where the prior decision is based on a decisive determination and not on the mere likelihood of success. Id. at 1206. In this case, the federal court did not draw any decisive conclusions on the merits, nor did the federal court even address the likelihood of success thereon; rather, the federal court found that Mr. Bollea was not entitled to injunctive relief at a preliminary stage in the proceedings. See Bollea I, 2012 WL 5509624, at *2-5. And though the federal court's order is unquestionably persuasive, based on the foregoing, we decline to give it preclusive effect.

V. Conclusion

The circuit court's order granting Mr. Bollea's motion for temporary injunction is reversed because it acts as an unconstitutional prior restraint under the First Amendment.

Reversed.

DAVIS, C.J., and ALTENBERND, J., Concur.

_______________

Notes:

1. In both the underlying action and in the motion for temporary injunction, Mr. Bollea named Gawker Media, LLC; Heather Clem; Gawker Media Group, Inc.; Gawker Entertainment, LLC; Gawker Technology, LLC; Gawker Sales, LLC; Nick Denton; A.J. Daulerio; Kate Bennert; and Blogwire Hungary Szellemi Alkotast Hasznosito KFT as defendants. However, only Gawker Media, LLC, chose to appeal the order; the remaining parties are appellees in this proceeding who have made no formal appearance.

2. The circuit court also failed to require Mr. Bollea to post a bond, a very basic and ministerial act. See Fla. R. Civ. P. 1.610(b); see also Fla. High Sch. Activities Ass'n v. Mander ex rel. Mander, 932 So. 2d 314, 315-16 (Fla. 2d DCA 2006) (holding that a trial court cannot waive the bond requirement nor can the bond amount be nominal); Cushman & Wakefield, Inc. v. Cozart, 561 So. 2d 368, 370 (Fla. 2d DCA 1990) ("A trial court must require the movant to post an injunction bond before it enters a temporary injunction."). Though the circuit court can determine the appropriate amount of the bond after hearing evidence from both parties, the circuit court is without discretion to determine whether to set bond in the first place. See Bellach v. Huggs of Naples, Inc., 704 So. 2d 679, 680 (Fla. 2d DCA 1997).

3. The Supreme Court assigns each Justice to a federal circuit. See 28 U.S.C. § 42 (2012). As a Circuit Justice, the Justice is responsible for handling matters arising in cases from state and federal courts within his or her circuit.

5. We are hard-pressed to believe that Mr. Bollea truly desired the affair and Sex Tape to remain private or to otherwise be "swept under the rug." For example, in March 2012, Mr. Bollea called into TMZ Live, a celebrity and entertainment media outlet, and disclosed that he could not identify the woman in the Sex Tape because he had a number of "conquests" during the time it was filmed. Hulk Hogan – I Have NO IDEA Who My Sex Tape Partner Is, TMZ (March 7, 2012, 1:50 PM), http://www.tmz.com/2012/03/07/hulk-hoga ... r-tmz-live. Furthermore, in October 2012, Mr. Bollea appeared on The Howard Stern Show and professed that his good friend, Todd Alan Clem, known professionally as Bubba the Love Sponge, allowed Mr. Bollea to have sex with Mr. Clem's then-wife Heather Clem. Hulk Hogan – Yes, I Banged Bubba's Wife, TMZ (October 9, 2012, 6:08 AM), http://www.tmz.com/2012/10/09/hulk-hoga ... ward-stern. Mr. Bollea was certainly not shy about disclosing the explicit details of another affair he had while married to Linda Bollea in his autobiography. See My Life Outside the Ring at 187-88.

6. We are aware that Gawker Media is likely to profit indirectly from publishing the report with video excerpts to the extent that it increases traffic to Gawker Media's website. However, this is distinguishable from selling the Sex Tape purely for commercial purposes. Cf. Michaels I, 5 F. Supp. 2d 823.

7. Mr. Bollea cites to the offense of video voyeurism, section 810.145(2)(a), Florida Statutes (2006), and to the offense of interception and disclosure of electronic communications, section 934.03, Florida Statutes (2006), in support of his contention.

8. This opinion should not be construed as making a ruling regarding whether or not the information itself was intercepted unlawfully by Gawker Media's source.

10. Mr. Bollea relies heavily on David Vincent, Inc. v. Broward County, Florida, 200 F.3d 1325 (11th Cir. 2000), in support of his contention that the litigation of an action for a preliminary injunction does not have preclusive effect. However, the Eleventh Circuit, applying Florida collateral estoppel law, actually held that the state court's denial of a temporary injunction does not preclude plaintiffs from later pursuing a permanent injunction. Id. at 1331.

1. Defendants have engaged in outrageous, irresponsible and despicable conduct that should be punished to the maximum extent under the law. Defendant Clem caused Mr. Bollea to be secretly videotaped in or about 2006, without his knowledge or consent, while he was engaged in private consensual sexual relations with her in a private bedroom. On or about October 4,2012, the Gawker Defendants posted to the Internet a one-minute and forty-second "highlight reel" of the secretly-taped video and audio footage depicting Mr. Bollea naked and engaged in private consensual sexual relations with Clem in a private bedroom (the "Video"). The Gawker Defendants also posted~ with the Video, a graphic narrative that describes the sexual activity in the Video in lurid detail (the ''Narrative''). The Gawker Defendants posted the Video and Narrative at their website www.Gawker.com (the "Gawker Site"). The Gawker Defendants posted the Video and Narrative for the public to view, for the purpose of obtaining tremendous financial benefit for themselves, including without limitation (a) the sale of advertisements at the Gawker Site to viewers of the webpage with a link to the Video and Narrative, and (b) attracting new viewers to the Gawker Site for the long-term financial benefit of the Gawker Defendants and their numerous affiliated websites, and additional revenues from the substantial new viewers brought to the Gawker Site and its affiliated web sites by the Video and Narrative.

2. Mr. Bollea had no knowledge that the intimate activity depicted in the Video was being recorded. To the contrary, Mr. Bollea believed that such activity was completely private, and he had a reasonable expectation of his privacy in the private bedroom, and he reasonably believed that his privacy was safe and protected at all relevant times.

3. Both Clem's secret recording of Mr. Bollea naked and engaged in private consensual sexual activity, and the Gawker Defendants' posting of the Video and Narrative at the Gawker Site, constitutes a shameful and outrageous invasion of Mr. Bollea's right of privacy by a group of loathsome Defendants who have no regard for human dignity and care only about maximizing their revenues and profits at the expense of all others.

4. Mr. Bollea is informed and believes that the activities by both Clem, and the Gawker Defendants, constitutes a criminal violation of Florida's Video Voyeurism law codified at Section 810.145 of the Florida Statutes.

5. This lawsuit was necessitated by Defendants' blatant violations of Mr. Bollea's right of privacy and other rights as discussed herein. Clem violated Mr. Bollea's rights by participating in the secret recording of Mr. Bollea naked and engaged in private sexual activity in a private bedroom. The Gawker Defendants violated Mr. Bollea's rights by their wrongful disclosure of the private acts depicted in the Video; their unauthorized commercial exploitation of Plaintiff' s name, image, identity and persona; their refusal to remove the Video and Narrative when Plaintiff repeatedly requested and demanded its removal from the Gawker Site; and other calculated wrongful and tortious conduct as described herein.

6. Defendants' malicious conduct violates Plaintiff's constitutional and common law privacy rights and publicity rights, and exceeds all bounds of human decency. Defendants' gross and egregious intrusion into Plaintiff s privacy must be stopped, and must be punished to the maximum extent of the law.

JURISDICTION

7. This Court has jurisdiction because Plaintiff seeks relief in an amount greater than $15,000, exclusive of interest, costs and attorneys' fees.

8. This Court has personal jurisdiction over the Defendants as follows:

b. Defendants have committed intentional torts expressly aimed at Plaintiff, the effects of which were suffered in this circuit. Defendants' intentional conduct was calculated to cause injury to Plaintiff in Florida. Based on their intentional torts, Defendants should have reasonably anticipated being haled into this Court and due process is satisfied.

9. Venue is proper in this Court pursuant to section 47.011, Florida Statutes, because, among other things, the claims at issue accrued within this circuit.

PARTIES

10. Plaintiff Terry Gene Bollea is a resident and citizen of the State of Florida, and resident of Pinellas County.

11. Defendant Heather Clem aka Heather Cole is a resident of the State of Florida, believed to reside in Hillsborough County.

12. At all relevant times, defendant Gawker Media, LLC aka Gawker Media, was and is a limited liability company organized and operating under the laws of the State of Delaware, with its principal place of business in New York.

13. At all relevant times, defendant Gawker Media Group, Inc. aka Gawker Media, was and is a Cayman Islands corporation.

14. At all relevant times, defendant Gawker Entertainment, LLC, was and is a New York limited liability company. Thus, defendant Gawker Entertainment, LLC was and is a citizen of New York.

15. At all relevant times, defendant Gawker Technology, LLC was an is a New York limited liability company.

16. At all relevant times, defendant Gawker Sales, LLC was an is a New York limited liability company.

17. Plaintiff is informed and believes and based thereon alleges that defendants Gawker Media, LLC, Gawker Entertainment, LLC, Gawker Technology, LLC, and Gawker Sales, LLC were and are all under the control of defendant Gawker Media Group, Inc. based in the Cayman Islands.

18. At all relevant times, defendant Blogwire Hungary Szellemi Alkotast Hasznosito KFT aka.Gawker Media ("Blogwire Hungary") was and is a Hungarian off-shore company, and owns the Internet domain name GAWKER.COM.

21. At all relevant times, defendant Nick Denton ("Denton") was and is a citizen of Hungary and the United Kingdom, and is a resident and domiciliary of the State of New York. Defendant Denton is the founder of Gawker Media and currently owns all of, or a controlling or substantial interest in, Gawker Media.

22. At all relevant times, defendant A.J. Daulerio ("Daulerio") was and is a citizen, resident and domiciliary of the State of New York. Plaintiff is informed and believes and based thereon alleges that defendant Daulerio is the Editor in Chief of the Gawker Site and Gawker Media.

23. Plaintiff is informed and believes that defendant Kate Bennert ("Bennert") is a citizen, resident and domiciliary of the State of New York and is employed by Gawker Media.

24. Plaintiff is informed and believes and based thereon alleges that the Gawker Defendants, and each of them, were and are the agents, licensees, employees, partners, joint-venturers, co-conspirators, owners, principals, and employers of the remaining Gawker Defendants, and each of them are, and at all times herein mentioned were, acting within the course and scope of that agency, license, partnership, employment, conspiracy, ownership, or joint venture. Plaintiff further is informed and believes and based thereon alleges that the acts and conduct herein alleged of each of the Gawker Defendants were known to, authorized by, and/or ratified by the other Gawker Defendants, and each of them.

FACTS GIVING RISE TO THE CLAIMS

25. Plaintiff is a professional wrestler, motion picture actor, and television personality who. has enjoyed mainstream popularity as the character "Hulk Hogan." Plaintiff is a twelve-time world wrestling champion.

26. In or about 2006, Mr. Bollea engaged in private sexual relations with defendant Heather Clem, in Clem's private bedroom. Unbeknownst to. Mr. Bollea, and without his knowledge or consent, Mr. Bollea was filmed naked and engaged in private sexual relations with Clem. Plaintiff is informed and believes and on that basis alleges that Clem was involved in filming the private consensual sexual encounter between Mr. Bollea and Clem. Mr. Bollea understood, believed and expected that the sexual· activities in which he and Clem engaged in her private bedroom were completely private and would not be viewed by any other persons. Had Mr. Bollea known that his private sexual activities were being secretly filmed, Mr. Bollea would net have engaged in any such activities.

27.· Plaintiff is informed and believes and thereon alleges that the Gawker Defendants, based on the actions of Clem and others, obtained a copy of the secretly-filmed recording depicting Mr. Bellea naked and engaged in sexual relations with Clem. The recording was edited by the Gawker Defendants into. a one-minute and forty-second "highlight reel" depicting Mr. Bollea fully naked; showing his sex partner, Clem, performing oral sex en him; and showing him engaged in sexual intercourse with her. The footage was not blocked, blurred or obscured in any way by the Gawker Defendants, who created the edited "highlight reel" and also added English subtitles to the Video to ensure that viewers did not miss a word of their private encounter. The Gawker Defendants also prepared the Narrative describing the sexual encounter in lurid detail.

28. On or about October 4, 2012, the Gawker Defendants published at the Gawker Site the Video depicting Plaintiff having private consensual sexual relations with an anonymous woman in a private bedroom, and the Narrative graphically describing the actions taking place in the Video in lurid detail. Defendant Bennert, with the help or under the direction of defendants Denton and Daulerio, edited the secretly-filmed recording into the Video without Plaintiffs knowledge or consent. The Narrative was written and edited by defendants Daulerio, Denton· and Bennert. Plaintiff made numerous and repeated demands to the Gawker Defendants, including directly to defendant Denton, to remove the Video from the Gawker Site. However, the Gawker Defendants failed and refused to do so.

29. At no time prior to, during, or after the private consensual sexual encounter between Mr. Bollea and Clem did Mr. Bollea ever authorize or consent to any person or entity recording the private, intimate acts depicted in the Video, or the storage of the Video, or the editing of the Video, the dissemination, publishing or exploitation of the Video in any way or manner whatsoever, or the creation of the Narrative or other work based on the Video. On the contrary, Plaintiff finds the secret recording of his private sexual activity by Ms. Clem and the publishing of the Video and Narrative by the Gawker Defendants to be outrageous and egregious. The Video and Narrative have never been authorized by Plaintiff for any purpose whatsoever, including any form of disclosure to the public whatsoever.

30. Numerous media outlets and websites picked up on the Video and Narrative posted at the Gawker Site, and posted links to it, thus exposing hundreds of millions of people to the Video and Narrative. As a natural and foreseeable consequence, massive numbers of individuals were drawn to the Gawker Site, for which the Gawker Defendants have reaped tremendous revenues and profits, and have been unjustly enriched therefrom, based on both the short term web traffic of millions of people who have viewed the Video and Narrative and advertisements displayed thereat, and the long term increase in viewership to the Gawker Site and the Gawker Defendants' other affiliated sites, and the revenues and profits associated therewith for a prolonged period of time. Such tremendous benefits are a direct result of the tremendous fame and goodwill of Plaintiff.

31. As a natural and foreseeable consequence of Defendants' actions, Plaintiff has suffered, and continues to suffer, tremendous emotional distress. His life was "turned upside down" by the unlawful actions of the Defendants, including the continued display of the Video and Narrative at the Gawker Site, and Plaintiff continues to suffer from substantial emotional distress, on a daily basis, as a result. In particular, Plaintiff has suffered, and continues to suffer, substantial embarrassment, humiliation and hurt feelings as a result. Moreover, Plaintiff's goodwill, commercial value, and brand have been substantially harmed as a result as well.

32. Plaintiff has devoted a tremendous amount of his time and effort to developing his career as a professional champion wrestler, motion picture actor, and television personality, and to developing his universal goodwill, reputation and brand. Such efforts have created considerable commercial value in his name, image, identity and persona.

33. The commercial value of Plaintiff's name, image, identity and persona has been, and continues to be, substantially diminished by Defendants' actions, including the secret taping of Plaintiff naked and having sex; the unauthorized transmission of that recording to the Gawker Defendants; and the unauthorized posting, publishing, distribution and dissemination of the Video and Narrative, which is perceived unfavorably by the public and by the negative portrayal of Plaintiff in the Video and Narrative to the general public.

34. Defendants' conduct manifests a depraved disregard for Plaintiffs privacy rights and an unauthorized commercial exploitation of his publicity rights.

35. Plaintiff is informed and believes and alleges thereon that unless enjoined and restrained, the Gawker Defendants will continue to post, publish, distribute, disseminate and exploit the Video and Narrative, despite Plaintiffs numerous and repeated demands that the Gawker Defendants cease and desist. Such infringement and violation of Plaintiff s rights will continue to cause Plaintiff severe emotional distress and damage, for which there is no adequate remedy at law, if the Video and/or Narrative continue to be posted, published, distributed, disseminated and exploited by the Gawker Defendants. Such conduct and activity has caused and will continue to cause Plaintiff to suffer irreparable harm for which there is no adequate remedy at law.

36. All conditions precedent to the bringing and maintenance of this action and the granting of the relief requested have been performed, have occurred, or have been waived.

FIRST CAUSE OF ACTION

(Invasion of Privacy by Intrusion Upon Seclusion Against Defendant Heather Clem).

37. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive; as though fully set forth herein.

38. Clem, without Plaintiffs knowledge or consent, has grossly invaded Plaintiff's protected rights of privacy as recognized under the United States Constitution, Florida Constitution, and the common law, by filming Plaintiff in or about 2006 engaged in private consensual intimate sexual relations with Ms. Clem in a private bedroom. Plaintiff recently learned of the existence of this secretly-filmed video, and brought this lawsuit promptly thereafter.

39. Clem further violated Plaintiff's rights of privacy by disclosing the secretly filmed video to third parties, which then resulted in excerpts of the secretly-filmed video being posted on the Gawker Site.

40. The videotaping of Plaintiff engaging in consensual sexual relations in private quarters was not carried out for reasonable or legitimate purposes. Plaintiff had a reasonable expectation of privacy at all relevant times, and did not know about, nor consent to, the taping of the activity depicted in the secretly-filmed video.

41. The unauthorized taking and dissemination of the secretly-filmed video is highly offensive and objectionable to Plaintiff and to any reasonable person of ordinary sensibilities, and is not of legitimate public concern.

42. Clem knew or should have known that the secretly-filmed video contained private and confidential information, that Plaintiff had a reasonable expectation of privacy, that her conduct would cause private and personal things about Plaintiff to be revealed which Clem had no right to disseminate or disclose, and that the publication of these private facts constitute a clear and substantial violation of Plaintiff's right of privacy.

43. Clem violated Plaintiff's fundamental privacy rights by the conduct alleged herein, including the outrageous intrusion into Plaintiff s privacy and the publication, and dissemination of the secretly-filmed video in an unprivileged manner in conscious disregard of Plaintiff's rights.

44. Plaintiff is informed and believes and thereon alleges that Clem acted with actual malice and reckless disregard of Plaintiff's right of privacy.

45. Unless and until enjoined and restrained by order of this Court, Clem's continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the secretly filmed video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the secretly filmed video and all portions and content thereof and all copies thereof.

46. Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the secretly-filmed video, and any portions and content thereof; mandating the delivery of all reproductions and copies of the secretly-filmed video and all portions and content thereof; and transferring to Plaintiff all right, title and interest in and to the secretly-filmed video and all portions and content thereof.

47. Unless and until enjoined and restrained by order of this Court, Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the secretly-filmed video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the secretly-filmed video and all portions and content thereof and all copies thereof.

48. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of Clem were done intentionally or with a conscious and/or reckless disregard of Plaintiff's rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

SECOND CAUSE OF ACTION

(publication of Private Facts Against Defendant Heather Clem)

49. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive, as though fully set forth herein.

50. Clem disclosed or caused to be disclosed to third parties the contents of the secretly-filmed video depicting Plaintiff in or about 2006 engaged in private consensual sexual relations between with Ms. Clem in a private bedroom. Clem knew, or should have known, that the secretly-filmed video contained private and confidential information; that Plaintiff had a reasonable expectation of privacy in engaging in the activity depicted in the secretly-filmed video; that the secretly-filmed video was taken without Plaintiff's knowledge, consent, or approval and would reveal private and personal things about Plaintiff if disclosed to third parties which Clem had no right to disseminate or disclose; and that this publication of these private facts would be offensive and objectionable to a reasonable person of ordinary sensibilities, and would have the natural tendency of causing substantial damages to Plaintiff.

51. Clem's actions served no legitimate public interest.

52. Plaintiff is informed and believes and thereon alleges that Clem, acted with actual malice and reckless disregard of Plaintiff' s right to privacy.

53. Unless and until enjoined and restrained by order of this Court, Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the secretly-filmed video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the secretly-filmed video and all portions and content thereof and all copies thereof.

54. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has suffered substantial injury, damage, loss, harm, anxiety, embarrassment, humiliation and shame. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has been damaged and will be damaged, in an amount subject to proof.

55. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of Defendants were done intentionally or with a conscious and! or reckless disregard of Plaintiffs rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

THIRD CAUSE OF ACTION

(publication of Private Facts as Against the Gawker Defendants)

56. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive, as though fully set forth herein.

57. The Gawker Defendants disclosed to the public the contents of the confidential Video depicting Plaintiff fully naked and engaged in private consensual sexual relations with Clem in a private bedroom. The Gawker Defendants knew or should have known that the Video contained private and confidential information, and that Plaintiff had a reasonable expectation of privacy in being fully naked and engaged in consensual sexual relations in a private bedroom, and that the Video, taken without Plaintiff s knowledge or consent, would reveal private and personal things about Plaintiff which the Gawker Defendants had no right to disseminate, disclose or exploit, and that the publication of these private facts would be offensive and objectionable to a reasonable person of ordinary sensibilities.

58. The Gawker Defendants' posting, publishing, distributing, disseminating and exploiting of Plaintiff engaged in sexual relations in private quarters was not carried out for reasonable or legitimate purposes. Plaintiff had a reasonable expectation of privacy in being fully naked and having private consensual sexual relations with Clem in a private bedroom, and had no knowledge of, and did not consent to, the recording of such private sexual activity.

59. The unauthorized publication by the Gawker Defendants of the Video, Narrative and any portions or content thereof, is offensive and objectionable to Plaintiff, as well as to any reasonable person of ordinary sensibilities, and is not of legitimate public concern. Plaintiff did not consent to any use, distribution or exploitation by Defendants, or any other persons or entities, of the Video, Narrative or any portions or content thereof, whatsoever.

60. The Gawker Defendants knew or should have known that the Video, Narrative and/or any portions or content thereof, contained private and confidential information, and that Plaintiff had a reasonable expectation of privacy in the sexual activities depicted therein, and that the Gawker Defendants' conduct would reveal private and personal things about Plaintiff which the Gawker Defendants had no right to disseminate, disclose or exploit, and that the publication of these private facts would constitute a clear and egregious violation of Plaintiffs right of privacy.

61. The Gawker Defendants violated Plaintiff s fundamental privacy rights by the conduct alleged herein, including the outrageous intrusion into Plaintiff s privacy and the publication, dissemination, exploitation of the Video, Narrative and/or any portions or content thereof, in an unprivileged manner calculated to financial capitalize therefrom and gamer publicity throughout the world, to unjustly enrich the Gawker Defendants and in conscious disregard of Plaintiffs right of privacy.

62. Plaintiff is informed and believes and thereon alleges that the Gawker Defendants acted with actual malice and reckless disregard for Plaintiff s right of privacy.

63. The Gawker Defendants have continued to invade Plaintiffs right of privacy by continuing to disseminate and post the Video and Narrative. Unless and until enjoined and restrained by order of this Court, the Gawker Defendants' continued acts will cause Plaintiff to continue to incur severe and irreparable injury that cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to a temporary restraining order and preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the Video and all portions and content therefrom, including without limitation all still images thereof, and the Narrative.

64. As a direct and proximate result of the aforementioned acts by the Gawker Defendants, Plaintiff has suffered injury, damage, loss, harm, anxiety, embarrassment, humiliation, shame, and severe emotional distress in an amount subject to proof.

65. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of the Gawker Defendants were done intentionally or with a conscious and/or reckless disregard of Plaintiffs rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

FOURTH CAUSE OF ACTION

(Invasion of Privacy by Intrusion Upon Seclusion Against the Gawker Defendants)

66. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive, as though fully set forth herein.

67. The Gawker Defendants, without Plaintiffs consent and against Plaintiffs will, have grossly invaded Plaintiff s protected rights of privacy as recognized under the United States Constitution, Florida Constitution, and applicable common law, by obtaining, watching and editing the secretly recorded video and audio footage involving Plaintiff Clem and by posting and publicly disclosing the Video depicting Plaintiff fully naked and engaged in private intimate consensual sexual relations with Clem in a private bedroom, and by describing, in graphic, lurid detail, the private activities that occurred in private quarters. In doing so, the Gawker . Defendants "peered into the private bedroom" and enabled the general public to "peer into the private bedroom" and watch Plaintiff when he was fully naked and engaged in private sexual activity, without Plaintiff's knowledge, authorization or consent.

68. The Gawker Defendants' acquiring, viewing, editing, posting, publishing, distributing, disseminating and exploiting of Plaintiff fully naked and engaged in sexual relations in private quarters was not carried out for reasonable or legitimate purposes, but rather to reap substantial revenues and profits at the expense of Plaintiff and others. Plaintiff had a reasonable expectation of privacy in having private consensual sexual relations with Clem in a private bedroom, and had no knowledge of, and did not consent to, the recording or dissemination of such private sexual activity.

69. The actions by the Gawker Defendants are offensive and objectionable to Plaintiff, and would be offensive and objectionable any reasonable person of ordinary sensibilities, and is not of legitimate public concern.

70. The Gawker Defendants knew or should have known that the private video and audio footage, depicting Plaintiff naked and engaged in consensual sexual activity in a private bedroom, contained private and confidential information and content, and that Plaintiff had a reasonable expectation of privacy in the activities depicted therein, and that the Gawker Defendants' conduct would reveal private and personal things about Plaintiff which Defendants had no right to disseminate, disclose or exploit, and that the publication of these private facts would constitute a clear and egregious violation of Plaintiffs right of privacy.

71. The Gawker Defendants violated Plaintiffs fundamental privacy rights by the conduct alleged herein, including the outrageous intrusion into Plaintiffs privacy and the publication, dissemination, and exploitation of the Video and Narrative in an unprivileged manner calculated to financially capitalize therefrom, to garner publicity throughout the world, and to unjustly enrich the Gawker Defendants in conscious disregard of Plaintiff s right of privacy.

72. Plaintiff is informed and believes and thereon alleges that the Gawker Defendants acted with actual malice and reckless disregard of Plaintiffs right of privacy.

73. The Gawker Defendants have continued their invasion of Plaintiffs right of privacy by continuing to disseminate and post the Video and Narrative. Unless and until enjoined and restrained by order of this Court, the Gawker Defendants' continued acts will cause Plaintiff to continue to incur severe and irreparable injury that cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to a temporary restraining order and preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the Video and all portions and content therefrom, including without limitation all still images thereof, and the Narrative.

74. As a direct and proximate result of the aforementioned acts by the Gawker Defendants, Plaintiff has suffered injury; damage, loss, harm, anxiety, embarrassment, humiliation, shame and severe emotional distress. As a direct and proximate result of the aforementioned acts by the Gawker Defendants, Plaintiff has been damaged and will be damaged, in an amount subject to proof.

75. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of Defendants were done intentionally or with a conscious and/or reckless disregard of Plaintiffs rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

FIFTH CAUSE OF ACTION

(Violation of Florida Common Law Right of Publicity Against the Gawker Defendants)

76. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive as though fully set forth herein.

77. Plaintiff is a professional wrestler, motion picture actor, and television personality who has enjoyed mainstream popularity as the character "Hulk Hogan." Plaintiff is a twelve time world wrestling champion. Plaintiff has devoted a tremendous amount of time and effort developing his career and developing his universal goodwill, reputation and brand. Such efforts have created considerable commercial value in his name, image, identity and persona.

78. The Gawker Defendants' unauthorized use of Plaintiffs name, image, identity and persona in connection with the Video and Narrative constitutes a violation and misappropriation of Plaintiff s right of publicity in that the Gawker Defendants misappropriated Plaintiff s name, likeness, image, identity and persona by using the Video and Narrative for the purpose of commercial gain, without Plaintiff s consent.

79. The misappropriation of Plaintiffs publicity rights was for the Gawker Defendants' advantage in that Plaintiffs name, likeness, image, identity and persona were used and intended to create and enhance the Gawker Defendants' pecuniary gain and profit.

80. The Gawker Defendants have continued to use Plaintiffs publicity rights continuing to disseminate the Video and Narrative at the Gawker Site, notwithstanding Plaintiff s numerous and repeated requests to Gawker Media and defendant Denton that they cease and desist immediately and permanently. Unless and until enjoined and restrained by Order of this Court, the Gawker Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot be adequately compensated by monetary damages. Plaintiff is entitled to a temporary restraining order and preliminary and permanent injunctive relief enjoining the publication, distribution, dissemination and use of the Video and all portions and content therefrom, including without limitation all still images thereof, and the Narrative.

81. As a direct and proximate result of the aforementioned acts by the Gawker Defendants, the Gawker Defendants have earned profits attributable to this unauthorized commercial use and exploitation of Plaintiffs name, image and likeness. The amount of such ill-gotten gains had yet to be ascertained. Plaintiff is entitled to recover all said unjust enrichment, including all profits earned by the Gawker Defendants as a

82. Moreover, Plaintiff is entitled to seek and hereby does seek the market value of the use of his publicity rights in the manner in which they were commercially exploited, without Plaintiffs permission and against his strenuous objections and legal demands.

83. As a direct and proximate result of the aforementioned acts by the Gawker Defendants, Plaintiff has suffered injury, damage, loss, harm, anxiety, embarrassment, humiliation, shame, and severe emotional distress in an amount subject to proof.

84. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of the Gawker Defendants were done intentionally or with a conscious and/or reckless disregard of Plaintiffs rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

SIXTH CAUSE OF ACTION

(Intentional Infliction of Emotional Distress Against All Defendants)

85. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive as though fully set forth herein.

86. At all times herein, Clem acted intentionally and unreasonably in creating the secretly-filmed video and audio footage and causing it to be disseminated to third parties when she knew or should have known that Plaintiffs emotional distress would likely result. The Gawker Defendants acted intentionally and unreasonably in acquiring, viewing, editing, publishing, distributing and disseminating the Video, and creating and publishing the Narrative, when they knew or should have known that emotional distress would likely result. Notwithstanding Plaintiffs repeated requests that Defendants cease and desist immediately from their posting and publishing of the Video and Narrative, the Gawker Defendants failed and refused to do so.

87. Defendants' conduct was intentional and malicious and done for the purpose of causing, or was known by Defendants to likely cause, Plaintiff humiliation, mental anguish and severe emotional distress and was done with the wanton and reckless disregard of the consequences to Plaintiff.

88. As such, in doing the acts alleged hereinabove, Defendants acted outrageously and beyond all reasonable bounds of decency, and intentionally inflicted severe emotional distress upon Plaintiff, to his detriment.

89. As a proximate result of the aforementioned wrongful conduct, Plaintiff has suffered substantial monetary damages, including damages to his personal and professional reputation and Career, and substantial emotional distress, anxiety and worry.

90. Plaintiff is informed and believes and thereon alleges that Defendants acted with actual malice and reckless disregard of Plaintiff' s right of privacy.

91. Unless and until enjoined and restrained by order of this Court, Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the Video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the Video and all portions and content thereof and all copies thereof, and the Narrative.

92. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has suffered substantial monetary damages, including damages to his personal and professional reputation and career, and substantial injury damage, loss, harm, anxiety, embarrassment, humiliation, shame, and severe emotional distress in an amount that has not yet been fully ascertained. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has been damaged and will be damaged, in an amount subject to proof.

93. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of Defendants were done intentionally or with a conscious and/or reckless disregard of Plaintiff's rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

SEVENTH CAUSE OF ACTION

(Negligent Infliction of Emotional Distress Against All Defendants)

94. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive as though fully set forth herein.

95. At all times herein, Defendants acted negligently and unreasonably in creating the Video and causing it to be disseminated to third parties. In doing so, Defendants acted beyond all reasonable bounds of decency, and negligently inflicted emotional distress upon Plaintiff, to his detriment.

96. Defendants' conduct was negligent and proximately caused Plaintiff to suffer substantial humiliation, mental anguish and severe emotional distress and was done with the wanton and reckless disregard of the consequences to Plaintiff.

97. As a proximate result of the aforementioned wrongful conduct, Plaintiff has suffered substantial emotional distress, anxiety and worry.

98. Plaintiff is informed and believes and thereon alleges that Defendants acted with actual malice and reckless disregard of Plaintiffs right to privacy.

99. Unless and until enjoined and restrained by order of this Court, Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the Video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the Video and all portions and content thereof and all copies thereof.

EIGHTH CAUSE OF ACTION

(Violation of section 934.10, Florida Statutes Against All Defendants)

100. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive as though fully set forth herein.

101. Plaintiff had a reasonable expectation of privacy in engaging in private consensual sexual relations in a private bedroom at all relevant times, and did not know about, nor consent to, the taping of the activity depicted in the secretly-filmed video, or its publication or dissemination.

102. Defendants violated Plaintiff s fundamental privacy rights by the conduct alleged herein, including the outrageous intrusion into Plaintiffs privacy and the publication, and dissemination of the secretly-filmed. Video in an unprivileged manner in conscious disregard of Plaintiff s rights.

103. Defendants disclosed or caused to be disclosed to third parties the contents of the secretly-filmed video depicting Plaintiff in or about 2006 engaged in private consensual sexual relations between with Clem in a private bedroom. Defendants knew, or should have known, that the Video contained private and confidential information; that Plaintiff had a reasonable expectation of privacy in engaging in the activity depicted in the Video; that the Video was taken without Plaintiff s knowledge, consent, or approval and would reveal private and personal things about Plaintiff if disclosed to third parties which Defendants had no right to disseminate or disclose; and that this publication of these private facts would be offensive and objectionable to a reasonable person of ordinary sensibilities, and would have the natural tendency of causing substantial damages to Plaintiff.

104. Defendants' actions have not served any legitimate public interest.

105. Plaintiff is informed and believes and thereon alleges that Defendants have acted with actual malice and reckless disregard of Plaintiffs rights, including his right to privacy.

106. Unless and until enjoined and restrained by order of this Court, Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the Video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the Video and all portions and content thereof and all copies thereof.

107. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has suffered substantial injury, damage, loss, harm, anxiety, embarrassment, humiliation, shame, and severe emotional distress. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has been damaged and will be damaged, in an amount subject to proof.

108. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of Defendants were done intentionally or with a conscious and/or reckless disregard of Plaintiffs rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

1. For an award of general and special damages in an amount in excess of the minimum jurisdictional limits of this Court in accordance with proof at trial together with interest thereon at the maximum legal rate;

2. For costs of suit incurred herein;

3. For an Order and Judgment transferring to Plaintiff all of Defendants' right, title and interest in and to the secretly-recorded video and audio footage depicting Plaintiff s sexual encounter with Clem, and all portions and content thereof, and all copies and reproductions thereof contained in all media;

4. For an Order and Judgment requiring the delivery to Plaintiff of all copies of the secretly-recorded video and audio footage depicting Plaintiffs sexual encounter with Clem, and all portions and content thereof, in all formats and all forms of media, including electronic and physical media, within Defendants' possession, custody or control, including without limitation turning over to Plaintiff any and all storage devices (such as CDs, DVDs, hard drives, flash drives, tapes, and disks) containing same;

5. For preliminary and permanent injunction against Defendants and all persons acting under their control, from any and all activity that would cause the distributing, disseminating, publishing, displaying, posting for view or access on or through the Internet or any other manner or media outlet, broadcasting, transferring, licensing, selling, offering to sell or license, or otherwise using, exploiting or attempting to exploit, the secretly-recorded video and audio footage depicting Plaintiff s sexual encounter with Clem, or any portions or content thereof or any copies thereof, in any and all formats and media, including all electronic and physical media;

6. For an Order and Judgment requiring Defendants to turn over to Plaintiff all information pertaining to the secretly-recorded video and audio footage depicting Plaintiffs sexual encounter with Clem, including without limitation, all activity by all persons and entities related to the creation, storage, transportation, editing, distributing, disseminating, publishing, displaying, posting for view or access on or through the Internet or any other manner or media outlet, broadcasting, transferring, licensing, selling, offering to sell or license, or otherwise using, exploiting or attempting to exploit, such footage or any portions or content thereof or any copies thereof, in any and all formats and media, including all electronic and physical media;

7. For a constructive trust to be placed upon Defendants and all persons acting on their behalf or under their direction or control, as to all revenues and profits received by any and all such individuals, including Defendants, to be held for the benefit of Plaintiff, and to be disgorged in their entirety to Plaintiff, in connection with the secretly-recorded video and audio footage depicting Plaintiff s sexual encounter with Clem, including the publishing of the Video and Narrative;

8. For such other and further relief as to this court may deem and proper.

DEMAND FOR JURY TRIAL

Plaintiff Terry Gene Bollea hereby demands a trial by jury on all issues so triable.